Al-Basry v Maharaj

Jurisdiction - Time limits

1. There are different time limits for bringing applications under different sections of the Act.
2. The Tenant's compensation claim under Section 187 of the Act generally requires a finding that the Landlord has breached a term of the residential tenancy agreement (RTA). Claims under this section must be made within 3 months of the applicant becoming aware of the breach (S 190 of the Act and Reg 39 of the Residential Tenancies Regulation).
3. Applications for the rental bond must be made within 6 months of the rental bond having been paid out. It has not yet been paid out, pending the determination of these proceedings. I am satisfied that both parties have brought their applications within the timeframes set out in the Act. No issue was taken by either party in relation to the time limits.

The Issues

1. The issues that arise from the Tenants' claim are as follows: 1. Has the Landlord breached his obligation under Section 26 of the Act by knowingly concealing that the premises were subject to significant health or safety risks? 2. Has the Landlord breached his obligation under Section 52 to provide premises that are fit for habitation? 3. If yes, what losses have flowed to the Tenants as a result of the breach(es)? 4. Do the circumstances of the Landlord's breach (if any) entitle the Tenants to terminate their tenancy?

Documents

1. The Tenant relied on the following documents: 1. Their Notice to Terminate Tenancy Agreement dated 31 August 2021 2. Asbestex Asbestos Certificate of Analysis dated 25 August 2021 3. Airsafe Test Reports dated 27 August 2021 and 30 August 2021, and Invoices received for the same 4. A series of photos taken by the Tenants 5. Receipts for purchases of items from Bunnings for the premises 6. Emails between the Tenants and the managing agents 7. Chronology 8. Tenants' Summary of Events 9. National Code of Practice for safe use of Synthetic Mineral Fibres (SMF) 10. Code of Practice for Management and Control of Asbestos in Workplaces 11. Information from the National Occupational and Safety Commission relating to steps to be taken to prevent workplace exposure to airborne asbestos, and health consequences of exposure 12. Information regarding Duty of Care as an agent when asbestos is present 13. NSW Fair Trading Information for building contractors about loose-fill asbestos insulation in pre-1980 homes 14. Information from Asbestos Awareness.com in relation to homeowners repairing or removing small amounts of asbestos material 15. List of Contaminated Items and their estimate cost 16. Further Information from Safe Work Australia regarding SMF 17. Further photos of parts of the premises 18. Photos of abandoned Items 19. Specific photos of parts of premises tested by Airsafe. 20. Statutory Declaration of Wisam Pauls dated 26 October 2021, and Ryan Jeremic dated 27 October 2021.
2. The Landlord relies on the following documents in response (not including those already listed above): 1. Written "Overview" 2. Statutory Declaration of Nathan Saleh dated 12 October 2021 3. Statutory Declaration of Shayne Douglas, dated 12 October 2021. 4. Email to managing agents from Mitchell Jackson from Airsafe dated 10 September 2021. 5. Extract from NSW Fair Trading Loose-fill insulation register 6. Extract from tenancy application of Tenants 7. Photos of vents, bathtubs and disputed items belonging to Tenants.

Tenants' evidence

1. The Tenants provide the following evidence in support of their claims: 1. On 5 August 2021, they entered into an agreement with the agents to renovate the premises at their own cost in exchange for a rent reduction from $400 per week to $380 per week. They received verbal approval to remove the carpets, repaint the walls including fixing cracks, gaps, holes and pulling out nails where necessary, and sanding them down to a smooth surface before painting. They were given the impression that other than the age, state of disrepair and unclean condition left from a previous tenant, the premises did not have any other issues they should know about. 2. An email dated 5 August 2021 from the agent indicates the Tenants are: … more than welcome to pull the carpets up if need be and paint the walls at your own cost. The owner won't claim anything from the bond when you vacate. 1. They collected the keys early - on 6 August 2021 - so they could commence the renovations before the furniture arrived. They commenced pulling up the carpet immediately. 2. In an email sent to the agents on 8 August 2021, the Tenants sent a draft Tenant Authorization Letter for the agents to sign, detailing the agreed renovations at the Tenants expense, and confirming that all stated renovations "are safe and pose no environmental hazard". They understood this just confirmed what had been agreed verbally. 3. The agents refused to sign this agreement, but because they had not rejected what they proposed, they assumed it was agreed and commenced the stated renovations. 4. On 8 August 2021, the agent emailed that there was agreement only to the painting of the walls and removal of the carpet and that: any other alterations you would like to do, please send an email to me … and I will give you permission to do so ..,. Please send me a list of alterations that you will be doing … and I will give you permission after speaking with the landlord … 1. They became suspicious that there may be a hazardous material because "an unfamiliar material kept showing up" in the areas where they were renovating (dust fibres), and appeared to be coming from ceiling cracks and vents. There was an exchange of emails on 13 August 2021, in which the Tenants request the agent to ask the Landlord if there is any asbestos or fibrous asbestos in the house as we were given permission to screw nails in the wall I don't want to expose ourself (sic) to potentially harmful fibres The Tenants also asked for an asbestos report which they understood had been provided to the Landlord. The agent replies that the owner states there is asbestos in the roof, that the owner will look for the report, and: … maybe just don't make any holes in the walls for now. Use adhesives if needed This was the first confirmation they had about the presence of asbestos. 1. This advice was too late, as they had already disturbed the asbestos - mainly by sanding the walls - and had unknowingly exposed themselves to it due to the Landlord's failure to declare information about it 2. Having received this information, they moved their possessions outside to minimise further contamination, elevated them, wrapped them up and left them under shelter. They also removed themselves to temporary accommodation. 3. In summary, they claim the Landlord breached the tenancy agreement and placed their health at risk by failing to inform them about the presence of asbestos prior to signing the RTA (something which he knew due to a previous report which had not been released to them), and then allowing them to perform renovations which further exposed them to the asbestos and SMF. They wrote to the agents about this, and requested the Landlord engage an asbestos professional to test the premises and their belongings 4. The agent - Mr Douglas - emailed them on 20 August 2021 stating: 1. It is the agents' responsibility to disclose if there is Loose Fill Asbestos Insulation (LFAI) 2. The agent does not need to disclose if there is asbestos in the property. The majority of homes built in the 1980s have some asbestos but it does not pose a threat if it is not disturbed 3. The owner registered for an LFAI check about 5 to 6 years ago, but cannot locate the report. Fair Trading have not listed the property on the LFAI Register, indicating that there is none in the property 4. They have organised another inspection 1. The Tenants wrote to Mr Douglas on the same day confirming the inspection by the technician, limited to the roof only. They note that the technician indicated all the wet areas have asbestos, and they were concerned because some of the tiles in those areas are damaged and hence the asbestos has been disturbed. Furthermore, the technician indicated the carport roof contains asbestos - the sheeting on this roof is broken. They requested a further report of these areas to determine the presence of asbestos. 2. In a reply email on the same day, Mr Douglas confirmed the testing done on that day, and that the Tenants will need to make their own arrangements if they want other areas tested. He again confirmed that the owner had only approved the Tenants to paint the property and replace the carpet. He notes that the following areas of the home may contain asbestos and should not be disturbed - roof lining in the carport, walls in the bathroom, laundry and kitchen, vinyl flooring, eaves, meter board, outdoor sheds. He writes: Should these areas not be disturbed, they pose no threat to health or safety 1. On 26 August 2021, the agent forwarded them the technician report from Asbestex which confirmed organic fibres and SMF detection. The Asbestex report is dated 25 August 2021 and provides an analysis of one sample collected from "Insulation/Dust - Roof Cavity". An attached photo suggests that this sample was taken from the outside of a ceiling wall vent. It was examined using polarised light microscopy in conjunction with dispersion staining in accordance with the relevant Australian standards. The sample is found to contain no Asbestos, but to contain SMF. 2. They arranged their own testing by Airsafe. This revealed the presence of asbestos and SMF fibres in the areas they were renovating. On 31 August 2021, the Tenants emailed the Airsafe test results and the Notice of Termination to the agents, noting that their belongings had also been contaminated "due to the agent's negligence and disregard of the rules and regulations set out by the NSW government". They claimed that the Landlord will be liable for their loss including the costs of disposing of the contaminated items. 3. On the basis of the Airsafe results, the Tenants formed the view that the premises were uninhabitable due to health risks. They returned the keys on 3 September 2021, and believe they should not be liable for any rent after that date. The agent emailed them on the following date indicating they would not be responsible for the items the Tenants left behind, or any damages or theft. 4. They are now seeking the costs associated with the items that were contaminated. They washed whatever they could, but anything fabric they could not save
2. Information from Asbestos Awareness,com produced by the Tenants: 1. details safe practices for homeowners repairing or removing small amounts of asbestos material, where the home was built or renovated before 1987, 2. sets out the type of products that might contain asbestos and where they might be located in the home, 3. notes that if left undisturbed and in good condition, asbestos products don't pose a health risk. However, if disturbed fibres are released which can be inhaled and cause asbestos-related diseases. And 1. Further details "do's and don'ts to ensure you and your family are safe"
3. The technical information continues to detail (with photos) those parts of a home that might be affected including wall vents, bathroom floor and wall tiles, bituminous membrane used for waterproofing rooftops and floors, and cement sheeting where holes have been drilled. The Tenants produce photos of the premises to compare with the photos from Asbestos Awareness.com to indicate the similarities, and therefore the likelihood that these are affected areas. In particular they note the similarity of: 1. the wall vents 2. the holes in the cement sheeting
4. They also produce "Before" and "After" photos showing the preparation and renovation work they actually performed before becoming aware of the extent of the risk. This appears to include sanding over and filling the holes in the walls, filling the cracks where the floor tiles meet the wall, and in the bathroom wall tiles themselves. They note that part of the Airsafe report which indicates these were affected areas.
5. The Airsafe report of 27 August 2021 contains the following information in summary:

• Samples of fibreboard from the toilet room wall lining and bedroom carpet, underlay and adhesive collected on 27 August 2021 and 30 August 2021 respectively
• The fibreboard was analysed using polarised light microscopy including dispersion staining in accordance with the relevant Australian standards. It was found to contain Chrysotile asbestos and organic fibres.
• The carpet, underlay and adhesive were analysed in the same way. The carpet was found to contain Chrysotile asbestos and organic fibres. The underlay was not found to contain asbestos, but there were organic fibres. The adhesive was not found to contain asbestos.

1. On the basis of the combination of this information, the Tenants suggest they have been exposed to asbestos-related material with the associated related health consequences. Ms Al-Basry gave evidence that she is "unable to breathe in the same way. I felt my lungs were collapsing". She specifically notes she tested negative for COVID-19. Her doctor indicated this "might be the effect of exposure to asbestos/SMF". They specifically worked on the affected areas, including the fibreboard walls and pulling out the carpet and underlay. The Tenants believe they should have been informed in advance of this information. Had they received this information, they would not have touched the carpet.
2. They were unable to afford to do air monitoring. It was very expensive.
3. The Tenants also produce material from The National Occupational Health and Safety Commission (NOHSC) National Code of Practice for the Safety Use of Synthetic Mineral Fibres. The Code defines Synthetic Mineral Fibres (SMF) and asbestos, and indicates an exposure standard, and the potential health effects of exposure beyond the minimum amount.
4. The Tenants also allege that their goods have been contaminated as a result of the failure of the Landlord and agent to undertake the appropriate testing, or warn them of the likely exposure. They were never provided with the asbestos report which was in the possession of the Landlord.
5. Having received this information, the Tenants state they had no choice but to leave the premises. Ms Al-Basry stated that Mr Al-Basry has PTSD. It is very hard to control his anxiety, and he was panicking. Mr Al-Basry stated that he also had trouble breathing, even to the date of the hearing.
6. In relation to the claim for damage to the abandoned goods, Mr Al-Basry suggested that the asbestos and SMF gets embedded in the fabric. There is no easy way to clean it off. For example, it was not possible to clean the mattresses or microwave. The Tenants also refer to the NOHSC code which suggests that goods will be considered to be waste if it is any material, object, product or debris that contains asbestos (Asbestos-Containing Material), which is used during the asbestos work.
7. In further evidence provided after the 2nd hearing, the Tenants produce an amended list of the items for which they are seeking compensation. This is in a table form indicating the item in question, where it was purchased, when it was purchased, the purchase price, and the estimated current value. The Tenants also provide proof of purchase (receipt or bank statement) where available. The items include: 2 and 3 seater sofas Queen mattresses x 3 Queen fabric frame bed Tall boy Dressing table Cupboard Fridge Rugs x 3 Safety Helmet Shelving unit with inserts Mops, bucket and brooms Hammer No more gaps Caulking gun Shovel Vacuum cleaner x 2 Trolley Portable gas stove Kitchen scissors Pillow x 2 Dust masks x 5 Painting equipment including paint, tape and brush Microwave Fan Butane gas canisters Squeegee Dustpan x 2 Stew pot Headlamp Dettol cleaning equipment x 4 Artificial flowers Painting Laundry basket Carpet cleaner Persian rug The Tenants claim the total value of these items is $10,110.28 (including the cost of the Airsafe reports commissioned by them), and therefore close to $4000 less than the amended amount set out above at paragraph 6.

Evidence of Tenant Witness - Mr Wisam Pauls

1. Mr Pauls completed a Statutory Declaration dated 26 October 2021 and gave oral evidence on oath at the second hearing. His material evidence follows: 1. He witnessed the Tenants' belongings inside the premises. 2. He helped the family move in, renovate and move put 3. He has known the family for 10 years as a friend. 4. The belongings were in good condition, but had dust on them from the exposure. 5. They left the tallboy, the Persian rug and 4 other rugs inside the premises as they were very contaminated 6. Other items he helped to take out on 17 August 2021, including sofas, tables, fridge, microwave, vacuum cleaners, beds and mattresses. It was not safe to leave them inside 7. They stored these items under a carport, because the sheds also had asbestos. 8. He looked at the vents in the house. The kitchen vents were "taped up". They were blocked "because of all that fibres dust coming out which looked very concerning". They suspected it was "Mr Fluffy". 9. They did not take photos of the belongings outside because they were panicking. 10. The contents of the Statutory Declaration are true and correct. 11. It is an old house - "you expect a lot of dirt". 12. They did their work in P2 masks and PPE equipment.

Landlord's response to Tenants' claim

1. Ms Morris makes the procedural point that the Tribunal should ignore the Tenants' evidence as it was provided out of the time frames set on 1 October 2021. This matter can be dealt with quite briefly. Order 5 of 1 October 2021 indicates that a party's failure to provide documents in accordance with the Directions may result in the party not being able to rely on the documents at the hearing, unless leave is given. In this instance, I am satisfied that the ability of the Landlord to prepare his case has not been unduly prejudiced by the late submission of the Tenants' documents. Many of the Tenants' documents were filed and served even prior to the first hearing on 12 October 2021. The subsequent documents, whole out of the time frames specified, were still submitted well before the first hearing. The Landlord had sufficient time to prepare a response to these documents.
2. Ms Morris provides the following response to the Tenant's claim: 1. Mr Al-Basry inspected the property for 10 minutes on 4 August 2021, and agreed to apply for the tenancy as is. 2. The Tenants were only in the property for 4 weeks from 6 August 2021 to 3 September 2021 3. It is a 1970s home with a flat roof. There is no access point - manhole - into the roof space. There are air vents in 4 sections in the ceiling. 4. The Tenants were never given an unrestricted consent to renovate in any way they saw fit. Before moving in, they asked on 5 August 2021 to remove the carpets and paint the property at their own expense. The Landlord agreed to this, but not to anything other renovations. 5. The Asbestex report shows no asbestos detected, but SMF detected in the sample taken from the insulation/dust in the roof cavity. There is no requirement under the Act or Regulations or the RTA to disclose the presence of SMF. 6. There is a requirement to disclose whether the premises are listed on the LFAI (Section 26 of the Act, and Section 8 of the Regulations). The subject premises are not listed under the LFAI register, so there was nothing to disclose, and the Landlord is not in breach. The Tenant's Notice of Termination is therefore not valid. 7. The Airsafe report indicates the premises are in a good liveable condition. Ms Morris relies on an email from Mitchell Jackson from Airsafe to the agency dated 10 September 2021 which relevantly states: Sampling conducted at [the premises] to the WC toilet wall lining has indicated that the material tested is positive to contain asbestos. The wall lining at the time of sampling is considered to be in good condition, in current condition this material will not present an exposure risk or a health hazard to occupants if left undisturbed. Speculation was made that the bathroom and laundry may also contain asbestos, although this can only be confirmed via testing by a NATA accredited laboratory. These areas were also considered to be in good condition at the time of callout, the material will no present an exposure risk or a health hazard to occupants if left undisturbed. 1. The Tenants have provided no evidence of any contamination of their belongings. Ms Morris suggests that the belongings were never in fact moved into the premises. 2. The determination of the Tribunal should be governed only by the relevant provisions in the RT Act and Regulations. The National Occupational Health and Safety Commission (NOHSC) National Code of Practice for the Safety Use of Synthetic Mineral Fibres regulate workplaces, not tenancies.

The Tenants in reply

1. The premises are not listed on the LFAI register because it is likely that they were never inspected for asbestos or SMF. They have never been provide with the older asbestos report (refer paragraph 20g) which was apparently in the possession of the Landlord, and it may not exist.
2. The Airsafe report, is not a detailed assessment. It is a summary. The Airsafe inspector did not inspect the areas they had already disturbed in the process of commencing the agreed renovations.

Analysis of the Evidence

1. The Tenants submit the Landlord breached section 26 of the Act (and associated regulations) by knowingly concealing that the residential premises were subject to significant health or safety risks (the presence of asbestos and SMF in various parts of the premises) that were not apparent to a reasonable person on inspection of the premises. They submit that this breach entitled them to: 1. Terminate their tenancy forthwith, and 2. Claim compensation for the damage to their goods caused by this breach, and the cost of the expert report they commissioned.
2. The Tenants also argue that the Landlord breached Clause 19 of the RTA to make sure that the residential premises are … fit to live in. This is a restatement of section 52 of the Act which relevantly provides: 52 Landlor d's general obligations for reside ntial premises (1) A landlo rd must provide the resident ial premises in a reasonable state of cleanliness and fit for habitation by the tenan t. (1A) Without limiting the circumstances in which reside ntial premises are not fit for habitation, residenti al premises are not fit for habitation unless the residential premi ses-- (a) are structurally sound, and (b) have adequate natural light or artificial lighting in each room of the pr emises other than a room that is intended to be used only for the purposes of storage or a garage, and (c) have adequate ventilation, and (d) are supplied with electricity or gas and have an adequate number of electricity outlet sockets or gas outlet sockets for the supply of lighting and heating to, and use of appliances in, the premis es, and (e) have adequate plumbing and drainage, and (f) are connected to a water supply service or infrastructure that supplies water (including, but not limited to, a water bore or water tank) that is able to supply to the premi ses hot and cold water for drinking and ablution and cleaning activities, and (g) contain bathroom facilities, including toilet and washing facilities, that allow privacy for the user. (1B) For the purposes of subsection (1A)(a), residential p remises are structurally sound only if the floors, ceilings, walls, supporting structures (including foundations), doors, windows, roof, stairs, balconies, balustrades and railings-- (a) are in a reasonable state of repair, and (b) with respect to the floors, ceilings, walls and supporting structures--are not subject to signifi cant dampness, and (c) with respect to the roof, ceilings and windows--do not allow water penetration into the premi ses, and (d) are not liable to collapse because they are rotted or otherwise defective. (1C) The Secre tary may exempt any specified prem ises or any specified class of premi ses from the operation of all or any part of this section. An exemption may be unconditional or subject to conditions. … (3) A landl ord must comply with the land lord's statutory obligations relating to the health or safety of the residen tial premises. Note : Such obligations include obligations relating to swimming pools under the Swimming Pools Act 1992 . (4) This section is a term of every residential tenancy a greement.
3. The tenants do not suggest the premises are not fit for habitation in any of the ways particularly specified in sub-section 1A, but do suggest that the failure of the Landlord to pre-warn them that the renovation work they were permitted to do would effectively release hazardous substances resulted in the premises becoming unhealthy and unfit to live in. Sub-section 52 (1A) does not limit the circumstances in which premises can be found to be unfit for habitation.

Is the Landlord in breach of Sections 26?

1. To be in breach of this obligation, the Tenants must have been induced to complete the enter into the RTA by the Landlord or agent knowingly concealing that the premises were subject to significant health or safety risks.
2. On the basis of the evidence provided, I find against the Tenants in relation to this claim. The Tenants' evidence at its highest establishes the following matters: 1. The Landlord may have been in possession of an asbestos report which indicated the presence of asbestos and/or SMF in the premises, but did not provide this to them 2. They were given approval to do various alterations which had to the potential to expose these materials. 3. They became suspicious there may be hazardous materials when an unfamiliar material kept showing up, while they were preparing the walls for painting and removing the carpets. 4. They then asked the agent if there was any asbestos in the walls, and only then did the agent confirm there was asbestos in the roof. 5. That subsequent testing by Asbestex commissioned by the Landlord showed the presence of SMF (but not asbestos) in a sample taken from the roof cavity. 6. That the more comprehensive testing they commissioned by Airsafe revealed that samples of fibreboard from the toilet room wall lining were found to contain Chrysotile asbestos and organic fibres, and samples from the bedroom carpet, were found to contain Chrysotile asbestos and organic fibres. The underlay was not found to contain asbestos, but there were organic fibres. The adhesive was not found to contain asbestos.
3. I accept on the evidence that the Tenants did discuss with the managing agent, prior to the tenancy commencing on 6 August 2021, the possibility of undertaking certain work in the premises. Their email of 5 August 2021 asks the agent to confirm in writing that the owner is happy with them pulling out the carpets. The response from the agent on the same day is that the owner is happy with them pulling up the carpets and painting the walls.
4. The Tenants say these discussions were effectively a condition of them agreeing to enter into the tenancy, and they negotiated a $20 per week reduction in their rent on this basis.
5. I accept that these discussions took place. However, I do not find that the Landlord knowingly concealed any significant health or safety risks. The Landlord may have had a report which indicated the presence of asbestos in the roof. But I do not find there were any pre-tenancy discussions regarding renovations involving the roof space. In this sense, I cannot find that the Landlord knowingly concealed any fact within his knowledge regarding any health or safety risks, the disclosure of which may have influenced the Tenant's decision to enter into the tenancy.
6. Clause 47 of the RTA requires the landlord to advise the tenant in writing that the premises are listed on the LFAI register, if this is the case when the tenancy is entered into or becomes listed during the tenancy. I am satisfied on the evidence provided by the agent that the property was not before or at any time during the tenancy listed on the LFAI register. The reason for this non-listing does not matter.
7. Nor do I find that the subsequent finding of asbestos and/or organics fibres in the toilet room fibreboard and parts of the bedroom carpet were matters of which the Landlord ought to have been aware, or knowingly failed to disclose. In any event, as discussed further below, the presence of asbestos and fibres in these samples does not automatically result in a finding that the premises were "subject to significant health or safety risks".

Is the Landlord in breach of Sections 52?

1. Section 52 of the Act was considered in the Appeal Panel decision of Bhandari v Laming [2015] NSWCATAP 224 and the following relevant comments appear: 35 Section 52 imposes two obligations on the landlord. One obligation is to provide the residential premises in a reasonable state of cleanliness and the other is to provide residential premises that are "fit for habitation". 36 To "provide" means to "furnish" or "supply" (Macquarie Dictionary online). The term "residential premises" is defined in s 3 of the RTA and means "any premises or part of premises (including any land occupied with the premises) used or intended to be used as a residence". The residential premises are not confined to the physical or structural parts of the unit, such as the walls, ceiling and fixtures or fittings, but must include the environment within the unit such as the air. The expression "fit for habitation" is not defined in the RTA but as noted by the Tribunal in Bannister v Cheung [2014] NSWCATCD 105 at [20] the test of whether residential premises are fit for habitation is a difficult one to establish and should not be lightly found. The test is objective and residential premises may not be fit for habitation even where the defect is latent or the landlord is unaware of the defect. 37 It is clear the obligation arises at the commencement of the residential tenancy (Anforth, Christenson & Brentwood, Residential Tenancies Law & Practice NSW 6th Ed at [2.52.1] to [2.52.3] and the cases cited). Whether the residential premises are fit for habitation must therefore be assessed at the commencement of the residential tenancy agreement. If premises become unfit for habitation, the tenant's remedies for breach will lie under one of the other provisions in the RTA, depending on the circumstances. 38 The obligation to provide residential premises fit for habitation is mandatory and, according to language used in the provision, unqualified. Relevantly, the obligation is not expressed to be contingent on reasonable steps or to be dependent on the landlord being at fault or having control over the event or circumstance affecting the state of the premises. This is in contrast with the obligation on the landlord to provide and maintain the residential premises in a reasonable state of repair (s 63 RTA) and the obligation that arises in respect of the tenant's entitlement to quiet enjoyment of the residential premises (s 50 RTA). The landlord's obligations under sections 50, 63 and 52 (in relation to the state of cleanliness of the residential premises) are mandatory and ongoing but qualified by the concept of reasonableness. 39 Section 52 is expressed in clear and unqualified terms because the fitness, or otherwise, of residential premises for habitation is at the core of the subject matter of the agreement. Imputing the concept of reasonable steps or reading down the provision is not only inconsistent with the clear language of s 52 but may lead to an unfair outcome.

What is the standard for "fit for habitation?

1. The term is not defined in the Act, but has been subject to considerable judicial review. A review of the authorities relating to these terms was conducted in the decision of Member Sarginson in the matter of Keith Bannister v David and Mariam Cheung [2014] NSWCATCD 105. This was cited with approval in Bhandari. Member Sarginson makes the following relevant observations: "16 In respect of "fit for habitation", Aitken L.J. stated in Summers v Salford Corporation [1943] AC 283: "If the state of the repair of the house is such that by ordinary use damage may naturally be caused to the occupier either in respect of personal injury to life or limb or injury to health, then the house is not in all respects fit for habitation...it is clear that premises may be unfit for human habitation even though it is physically possible for a tenant to reside in the premises". 17 In Gray v Queensland Housing Commission [2004] QSC 276, Chesterman J reviewed the authorities regarding whether premises were reasonably fit for habitation, and stated as follows (at [11]): "The test approved by the House of Lords may be paraphrased: if the state of repair is such that injury is to be expected, or will naturally occur, from the ordinary use of the premises they cannot be regarded as fit for human habitation". 18 In Hampel v South Australian Housing Trust [2007] SADC 64, Milsteed J stated (at [63]): "In my opinion, a house is unfit for human habitation if an occupier could be expected to suffer physical injury or injury to health from the ordinary use of the premises. It may be so unfit for any reason. The risk to health or safety may arise because the premises are in a state of disrepair or dilapidation or because of a lack of facilities such as the provision of adequate water, light, ventilation, and so on." 19 In McLeish v FT Eastment & Sons Pty Limited [1970] 2 NSWR 282, 91WN (NSW) 268, the New South Wales Court of Appeal described the terms "reasonable state of repair" and "fit for habitation" in the following manner (citing Proudfoot v Hart (1890) 25 QBD 42):- "Must import such a state as to repair that the premises might be used and dwelt in, not only for safety, but for reasonable comfort, by the class of persons by whom and for the sort of premises for which, they were to be occupied...The conclusion I draw...is that the landlord is obliged to hand the premises over to the tenant, at the commencement of the lease, in a reasonable state of repair having regard to its age, rent payable and prospective life of the premises, and the state of repair must at least meet the minimum standard inherit in the contemporary understanding of the term "fit for habitation". 20 The test of "fit for habitation" is objective, rather than subjective. Residential premises may be unfit for habitation, even if the landlord is unaware of the defect. However, in De Solei v Palmhide Pty Limited [2010] NSWCTTT 464, the Tribunal noted that the test of proving that premises were not fit for habitation was a difficult one for a tenant to satisfy and a finding that premises are not fit for habitation is not to be lightly made."
2. The Tenants' Notice of Termination suggests that the premises are unusable and uninhabitable as the roof has asbestos, and there is confirmed asbestos and/or SMF fibres in other sampled areas. They suggest that if the premises were not already unfit for habitation at the start of the tenancy, they became so, when the Tenants were permitted to do work on the premises which exposed them to the hazardous materials. The agent relies on the email from Mitchell Jackson from Airsafe dated 10 September 2021 which indicates that the materials found that the areas where the samples were found to contain the asbestos were still in a good condition, and would not present an exposure risk or a health hazard to occupants if left undisturbed. I note that the Tenants had already "disturbed" these areas at the time of the Airsafe inspection (through preparing the walls and removing the carpets etc), so Mr Jackson's words must be read as meaning "further disturbed".
3. I have no doubt that the Tenants had a genuine belief that they had unwittingly placed their health at risk through exposure to hazardous materials from the work they had done at the premises, but the question of habitability is to be determined by objective standards, rather than subjective beliefs.
4. The Tenants' belief appears to have been based on a combination of their observation of what they believed to be "dust fibres" or "unfamiliar material" from the areas near where they were working, the results of the testing, and their own feelings of ill-health (refer paragraphs 20g, 24 and 25). However, I am unable to find on the balance of probabilities that the presence of asbestos and SMF fibres in these samples did in fact result in the premises becoming uninhabitable. I find that the Tenants are not greatly assisted by the material they provided from National Code of Practice for safe use of Synthetic Mineral Fibres, the Code of Practice for Management and Control of Asbestos in Workplaces, the information from the National Occupational and Safety Commission relating to steps to be taken to prevent workplace exposure to airborne asbestos, and health consequences of exposure, NSW Fair Trading Information for building contractors about loose-fill asbestos insulation in pre-1980 homes, and the information from Asbestos Awareness.com in relation to homeowners repairing or removing small amounts of asbestos material. This material was either written for the purpose of regulating other arrangements (such as workplaces), or too general to have any application to the specific circumstances of this tenancy. For example, a failure to comply with the suggested safety measures does not mean that the premises have become uninhabitable in this instance. I give the greatest weight to the actual inspections which were undertaken by Asbestex and Airsafe.
5. I note also that the Tenants have not provided medical evidence to link their symptoms to possible exposure to hazardous materials. This makes it difficult to establish that they have been caused personal injury or illness as a direct result of the state or condition of the premises.
6. The evidence of Mr Wisam Pauls and Mr Ryan Jeremic confirms their observations of "dust" blocking the vents, and dust on the Tenants' belongings. However, neither of these witnesses claims to have expertise in determining the nature of this material, and their evidence does not take the question of habitability any further.
7. The Tenants have not provided any evidence of contamination of their goods. The Landlord denies that the Tenants' belongings (now disposed of) have been contaminated. The orders of 1 October 2021 state that the Tenants agree that the goods are abandoned and are asbestos contaminated items. The Landlord has never agreed to this proposition, and appears to have maintained its position to the contrary throughout these proceedings. For this reason, even had I found the Landlord to be in breach of any provisions of the RTA or Act, I would not have been able to find that the various items of their belongings (refer paragraph 31) have been damaged beyond repair as a direct result of contamination. There is nothing on the photos of those items that clearly indicate such damage through contamination, and this without further expert analysis cannot lead to that conclusion.
8. Having reached this conclusion, it is unnecessary to further consider the Landlord's objections to the location, or valuation of the items for which the Tenants have sought compensation.
9. For these reasons, I am unable to find the Landlord is in breach of Clause 19 of the RTA, or Section 52 of the Act. There was accordingly no basis a law or under the RTA for early termination of the tenancy by the Tenant, and I am accordingly unable to make an order under Section 103 of the Act terminating the tenancy. For the same reasons, I also cannot be satisfied that this can form the basis of a claim for compensation under Section 187 of the Act. The Tenants claims under these sections must therefore fail.
10. The balance of the Tenants' claims are for: 1. Repayment of rent paid for the period 13 August 2021 to 16 September 2021, and 2. The rental bond of $1,520.
11. The claim for the rental bond will be considered in the context of the Landlord's claims.
12. Having dismissed the Tenant's claim for termination of their tenancy, they remain liable to pay rent at least until the date they gave up their tenancy. The keys returned on 3 September 2021. They now accept (see paragraph ) that they paid rent to 2 September 2021. There is no overpaid rent.

the landlord's applicaton

1. The Landlord seeks payment of the bond and compensation in respect of the following items: 1 day of rent arrears $ 54.29 Removal of rubbish and Tenants' belongings $1914.00 Cleaning $ 440.00 Handyman repairs $ 610.50 Lawns $ 132.00 Lock change $ 319.00 Water usage to vacate $ 2.38 Break Lease Fee (4 weeks rent) $1520.00 Daily Occupation fee/storage fee for Tenant items For 28 days (4.9.21 to 1.10.21) $1520.12 TOTAL $6,512.12

Rent Arrears and water usage

1. As noted above, the Tenants now accept they paid rent to the day prior to returning the keys. As I have found the Tenants had no basis at law to terminate their tenancy, I order the Tenants to pay $54.29.
2. On the basis of the water usage invoice provided by the Landlord, I am also satisfied that the Tenants owe $2.38 for the final usage.

Break Fee

1. The Landlord relies on Clause 51 of the RTA which is an approximation of S 107 of the Residential Tenancies Act 2010 ("the Act"). Clause 51 relevantly provides: Clause 51 The Tenant agrees that, if the tenant ends the residential tenancy agreement before the end of the fixed term of the agreement, then tenant must pay a break lease fee of … (51.1) 4 weeks rent if less than 25% of the fixed term has expired … This clause does not apply if the tenant terminates the residential tenancy agreement early for a reason that is permitted under [the Act]. NOTE: Permitted reasons for early termination include … breach of the agreement by the landlord …"
2. It is evident that the intention of these provisions is to ensure that a Landlord receives some financial compensation for the decision of a Tenant to abandon the premises before the end of the fixed term. The fixing of an amount of 1, 2, 3 or 4 weeks' rent provides some certainty to the parties of the amount payable in these circumstances.
3. Section 107 of the Act provides as follows: (1)The Tribunal may, on application by a landlord, order a tenant to pay compensation to the landlord for any loss (including loss of rent) caused by the abandonment of the residential premises by the tenant. (2) The landlord must take all reasonable steps to mitigate the loss and is not entitled to compensation for any loss that could have been avoided by taking those steps. This subsection does not apply in the case of a fixed term agreement for a fixed term of not more than 3 years. (3) The compensation payable by a tenant under this section in respect of a fixed term agreement for a fixed term of not more than 3 years is the amount of the applicable break fee for the tenancy calculated under subsection (4). (4)The "break fee" for a fixed term agreement for a fixed term of not more than 3 years is-- (a) if less than 25% of the fixed term had expired when the premises were abandoned--an amount equal to 4 weeks rent…, (5) The amount of any money paid to a landlord by a tenant on terminating a fixed term agreement before the end of the fixed term or before otherwise abandoning the premises (other than money previously due to the landlord under the residential tenancy agreement) is to be deducted from any amount payable to the landlord under this section.
4. Section 107 finds it place in the Act under Division 4 of Part 5 dealing with abandonment of residential premises. As I have found that the Tenants vacated the premises without a cause allowed by the law, they may well be regarded at law as having "abandoned" the premises, although the circumstances were clearly quite different to the Tenant who merely "disappears". The Tenant argues that she should not be regarded as having abandoned the property, as the tenancy was effectively brought to an end by order of the Tribunal on 7 March 2019, following agreement between the parties. Section 81 of the Act sets out the circumstances in which residential tenancies can terminate, as follows: 81 Circumstances of termination of residential tenancies (1) Termination only as set out in Act A residential tenancy agreement terminates only in the circumstances set out in this Act. (2) Termination by notice and vacant possession A residential tenancy agreement terminates if a landlord or tenant gives a termination notice in accordance with this Act and the tenant gives vacant possession of the residential premises. (3) Termination by order of Tribunal A residential tenancy agreement terminates if the Tribunal makes an order terminating the agreement under this Act. (4) Other legal reasons for termination A residential tenancy agreement terminates if any of the following occurs-- (a) a person having superior title (such as a head landlord) to that of the landlord becomes entitled to possession of the residential premises, (b) a mortgagee of the residential premises becomes entitled to possession of the premises to the exclusion of the tenant, (c) a person who succeeds to the title of the landlord becomes entitled to possession of the residential premises to the exclusion of the tenant, (d) the tenant abandons the residential premises, (e) the tenant gives up possession of the residential premises with the landlord's consent, whether or not that consent is subsequently withdrawn, (f) the interests of the landlord and tenant become vested in the one person (merger), (g) disclaimer occurs (such as when the tenant's repudiation of the tenancy is accepted by the landlord).
5. Arguably, as the above are alternatives, it might be argued that a Tenant who leaves after giving a termination notice( Section 81(2)), cannot be said to have abandoned the premises (81(4)(d)), triggering the break fee under Section 107. However, to make sense as a basis for terminating the tenancy, Section 81(2) can only apply as a basis for terminating the tenancy, if there is a valid reason under the Act to do so. I am satisfied therefore that this tenancy can only be regarded as having come to an end due to abandonment.
6. The next question is whether the break fee should be ordered in this particular case. S 107 does provide a discretion ("may … order a tenant to pay compensation to a landlord") but this discretion must be exercised judicially. There are some circumstances in which it will not be appropriate to make such an order, despite the presence of the standard Clause 51 of the RTA (see for example Abdel-Messih v Marshall [2017] NSWCATAP 136). In that case, the Appeal Panel noted that: the language of s 107 by the use of the word "may" has the effect that where a landlord has suffered loss caused by the abandonment of the residential premises by the tenant, the Tribunal may order the tenant to pay compensation but it is not the case that the Tribunal must order compensation. And that, to the extent of any inconsistency between Clause 51 of the RTA and Section 107 of the Act: s 107 must prevail (referring to Talbot-Price v Jacobs [2008] NSWCA 189) The Appeal Panel concludes that Section 107 does not mandate the payment of compensation, and that the Tribunal has a discretion as to whether compensation should be awarded.
7. I have considered the course of events to determine how to exercise this discretion. There is no doubt that the Tenants decided to end the tenancy due to their belief that continued occupation of the premises would significantly impact their health due to the presence of asbestos and SMF. I consider this to be their genuine belief, though I have been unable to find sufficient evidence to support this conclusion. To their credit, the Tenants were open in their concerns which they clearly and repeatedly communicated to the managing agent. However, their decision to issue a Notice of Termination effective immediately, provided no further opportunity for the Landlord to resolve the issue, in circumstances where the period of notice for breach is normally 14 days (Section 98 of the Act).
8. On balance, and despite finding the Tenants held a genuinely belief of contamination of the premises, I am satisfied that the discretion should be exercised in favour of the Landlord. To do otherwise would be to elevate the subjective beliefs of the Tenants above the objective facts I have found, and that is not a sufficient basis to oust the otherwise applicable break fee.
9. I order the Tenants to pay the break fee of $1520.

Daily occupation Fee/storage fee

1. The Landlord seeks an occupation fee for the Tenant's goods which remained at the premises after they vacated. The managing agent Ms Morris provides the following evidence: 1. The Tenants left their belongings in the premises when they handed in the keys on 3 September. The goods were still there on 1 October 2021, when the Tribunal made an order authorising the removal and disposal of the uncollected goods by the Landlord at the premises pursuant to Section 31A of the Uncollected Goods Act. 2. The agent undertook the outgoing inspection on 9 September 2021. The agent sent the Tenants the outgoing condition report (OCR) and a list of items to be rectified on the following day. This email included the following statement: … Also take this email as your 14 day uncollected goods notice. If items are not removed within 14 days from today, we will organise our tradesman to have these items removed and disposed at your own expense. Please note that every day that these items are left at the property, you will be charged a daily occupation fee being $54.29 per day due to goods left behind as storage. If you would like to collect the items in the next 14 days, please contact … 1. The property "is not a storage unit". They could not dispose of the items until authorised by the Tenants, or until the order of the Tribunal.
2. In response, the Tenants state that they could not remove the items as they had to assume they were contaminated, until otherwise advised. In an email to the agents dated 18 August 2021, they requested the Landlord to undertake the asbestos assessment, including "testing our belongings (furniture etc) have been contaminated or not with a certified copy of the certificates". In the next few days, the agent indicated they would undertake the testing of the premises, but "should you wish to get items tested, you will need to organise this yourself and at your own expense."
3. On the day of vacating the premises on 3 September 2021, the Tenants again emailed the agent noting they had left their belongings at the premises "due to contamination", but they will "require appropriate testing to determine if they are contaminated. Will the landlord be willing to arrange for this …?
4. The agent replied the following day to state the Landlord "will come back to you in relation to your belonging. We are not responsible for the items that you left behind and we will not be liable for any damages or theft"
5. The Landlord and agent never provided any further information about testing their belongings. They were not given any further opportunity to remove their items. They were unable to return to the property once they handed in their keys. They removed what property they could remove.
6. Ms Morris replied that the Tenants could at any time before the first Tribunal hearing have given authority for their belongings to be disposed of.
7. I have considered these submissions. I am not satisfied the Landlord is entitled to the payment of an occupation/storage fee. My reasons for dismissing this part of the claim are as follows: 1. The Tenants did not merely avoid removing their belongings. They provided a reason for doing so, and attempted to negotiate testing for contamination at the Landlord's expense. 2. When an agreement about this was not reached, the Tenants immediately lodged their application to the Tribunal and were entitled to await the Tribunal determination before taking further action. 3. The Landlord (through the agent) did not make a formal claim for the storage fee until 10 September 2021. 4. Moreover, having found in favour of the Landlord for the break fee, awarding a further 4 weeks' occupation/storage fee would amount to an undue betterment for the Landlord. The 4 week break fee is intended to compensate the Landlord for the inconvenience and possible financial loss suffered when a Tenant abandons the premises without due cause. The Tribunal authorised the removal of the Tenants' goods on 1 October 2021, which was almost exactly 28 days after the tenancy ended with the Tenant returning the keys. The Landlord cannot therefore be said to have suffered any additional financial loss.
8. This part of the Landlord's claim is therefore dismissed.

Balance of the Landlord's Claims

1. The balance of the Landlord's claims fall for consideration in accordance with the Section 51(3) of the RTA, which relevantly provides: On giving vacant possession of the residential p remises, the t enant must do the following - 1. remove all the te nant's goods from the residential p remises, (b) leave the residential prem ises as nearly as possible in the same condition, fair wear and tear excepted, and, if there is a condition report, as set out in the condition report applicable to the premis es when the agreement was entered into, (c) leave the residential prem ises in a reasonable state of cleanliness, having regard to the condition of the pre mises at the commencement of the ten ancy, (d) remove or arrange for the removal from the reside ntial premises of all rubbish, having regard to the condition of the premi ses at the commencement of the ten ancy, (e) return to the landl ord all keys, and other opening devices or similar devices, provided by the landlor d to the te nant.
2. The Ingoing Condition Report, and any reports as to the condition at the end of the tenancy are the key documents here. The Tribunal must consider whether the deterioration in the condition of the premises has occurred naturally because of normal use ("fair wear and tear"), or because of something which goes beyond that. Fair wear and tear is not a subjective standard of each individual landlord. The requisite standard has been said to be that commonly prevailing among tenants of comparative premises [Fitzpatrick v Wu RTT 01/16425]
3. It is for the Applicant (the Landlord in this matter) to establish the facts on which findings are to be made on the balance of probabilities.
4. If the Tribunal is satisfied that the Tenant is responsible for the deterioration in the condition of the premises as a result of something beyond reasonable wear and tear, the Tribunal must consider what a reasonable amount of compensation is. If the landlord seeks to replace the item in question, the Tribunal must consider the age of the item to determine its depreciable value.
5. The Act also provides that the Landlord must take appropriate action to mitigate any loss suffered.

Condition of premises at start of Tenancy

1. The Landlord relies on the Ingoing Condition Report (ICR), including ingoing photos, and the key collection documents. The Tenants state they never received a copy of the ICR as required under the RTA. This meant they did not get the chance to append their comments.
2. Ms Morris stated that the agent complied with their legal obligation to provide a copy of the ICR. It was sent on 6 August 2021 as an attachment to an email to Mr Al-Basry, and they also sent 2 reminders to return the ICR with their comments within 7 days. They provided the Tenants with a link to send their comments. The tenants chose not to provide any comments, so it must be assumed they agreed with the agent comments on the ICR
3. Ms Al-Basry complains that the ICR should have been sent to her as well. The agents had her email. She is her brother's (the other tenant's) carer. He is on a disability pension due to a range of medical conditions. She had asked to be the main point of contact so she cannot understand why the ICR would have been sent to only her brother. She suggests that she and her brother should not be prejudiced by this failure to properly serve the ICR. Mr Al-Basry indicated that the link to the ICR sent to him did not work. This contrasts with the PDF link for the OCR which worked perfectly well.
4. I have considered the matters raised by the Tenant. The Landlord's obligation is to complete a condition report on or before the tenancy agreement is signed, and give the tenant 2 copies or one electronic copy of the report. The Tenant is then required to complete their part of the report within 7 days of receiving it from the agent. (Section 29 of the Act)
5. The ICR submitted by the agent is dated 6 August 2021, the start date of the tenancy. It contains the Landlord's comments but no Tenant comments. It is not signed by the Tenants. Attached are the Landlord's photos of the various rooms dated 5 August 2021.
6. Section 30 of the Act provides: 30 Condition report evidence of condition of premises (1) A condition report that is signed by both the landlord and the tenant is presumed to be a correct statement, in the absence of evidence to the contrary, of the state of repair or general condition of the residential premises on the day specified in the report. (2) This section does not apply-- (a) to any matter that could not have reasonably been discovered on a reasonable inspection of the premises, or (b) to any statement in the report about which the tenant makes a written dissenting comment on the copy of the report completed by the tenant and retained by the landlord.
7. Because it does not contain both signatures, this presumption does not apply. I do accept the agent's evidence that an attempt was made to give an electronic copy of the ICR to the Tenants (or one of them), but this may not have been successful. However, in the absence of any specific alternative position put by the Tenants as to the condition of the premises at the start of the tenancy, I am satisfied that the ICR is the best evidence of that condition, and will use it and the photos taken as a comparator to the condition at the end of the tenancy.

Removal of carpets, belongings, carpet underlay

1. The Landlord relies on a quotation from VIP lawn and garden maintenance and pest control dated 9 September 2021 for $1914 for : Removal of all furniture items under carport $ 760 Removal of all items in house including underlay in bedroom 3 $ 230 Underlay glue removal and sanding of floor and revarnish of floor $ 485 Removal of all building materials at back of property $ 265 TOTAL $1740 (plus GST)
2. Ms Morris confirms that the carpet was there when the Tenants moved in. There was a glue residue when they moved out that had to be removed. The are unable to re-rent the premises with9ut a carpet, and with glue residue. The Tenants only half-completed the task
3. The Tenants provide the following evidence in response: 1. They were given approval to remove the carpet and were told by the agent to leave the carpet underlay because the owner was demolishing the premises. This is also indicated on the last page of the ICR. They were advised not to put the carpet on the grass 2. An email from the agent on 5 August 2021 confirms that the Tenants are "more than welcome to pull up the carpets if need be and paint the walls at your own cost. The owner won't claim anything from the bond when you vacate." 3. They were never told they were required to sand or varnish the floors - just approved to remove the carpets. 4. They had to "evacuate" the premises quickly due to the likely contamination. They did not have time to do a full clean-up. 5. There were only one or two items left in the house - a tallboy, a chair and a small rug. 6. The building materials at the back of the house are not theirs. They refer to Image 311 from the ICR showing various items in the shed [Ms Morris suggests the materials are just the carpet and underlay]
4. As noted above, the Tenant's obligation is to remove all their belongings and any rubbish. Having been given permission to remove the carpet, there was no absolute obligation to restore the floor, particularly in circumstances where the Tenants were advised the home was to be demolished. This was an instance where the usual obligation to return the premises to the same condition as existed at the start of the tenancy must be regarded as having been modified by agreement between the parties.
5. I will allow the amount clamed for the removal of the Tenant's belongings which they stored outside the premises, and a small amount for the remaining items inside the premises. I allow $860 plus GST equals $946.

Cleaning

1. The Landlord relies on the Invoice from Big Boss Cleaning dated 10 September 2021 for $440 for End of Lease cleaning ("full internal clean").
2. Ms Morris refers to the report emailed to the Tenants after the final inspection on 9 September 2021. This refers to the need to clean the kitchen sink, bathtub, dirty toilet, dispose of toilet rolls, remove and dispose of items in the red and yellow bins which will not be collected by council, clean off paint in hallway and laundry floor where door is located, remove items left in the kitchen cupboard, remove hand towel holder on cupboard and remove white paint on front face of bottom drawer.
3. Ms Morris asks me to compare the comments on the ICR and OCR, indicating the above differences. She notes that the final inspection was done 6 days after the Tenants returned the keys. She cannot explain why it was not done sooner, but states that no-one was in the premises in the intervening period.
4. The Tenants reply that they left the premises in a much cleaner condition than when they moved in. They produce their own photos before and after they completed their renovations. The later photos were taken on 2 September 2021 - the day before they vacated the premises. They deny there was paint on the laundry floor, stating this was filling coming off. They could not clean the bathtub because it contained SMF
5. I have considered all of the evidence. The ICR indicates the premises were of an older style and worn in parts, but generally clean at the start of the tenancy. I accept from the evidence of the Tenants that they attempted to clean, and certainly did fix and clean some of the areas that had been previously old and worn. However, it is also clear they left the premises urgently after becoming convinced of the presence of the hazardous materials. Doing the best I can with the evidence, I will allow $200 for the cleaning.

Handyman repairs

1. The Landlord relies on the quotation from MJ Handyman Services dated 14 September 2021 for $610.50 (inc GST). This is for the following items: Refit blind slats with new clips to loungeroom, refit blind slat to kitchen window clip, remove broken cord from bottom of blinds to kitchen and loungeroom $ 67 Sand all patches to 3 walls in Bedroom 3 and repaint entire walls $343.50 Install handle to garage roller door $ 75 Repair bent pole to front gate $125
2. Each of these items is referred to in the email to the Tenants which followed the final inspection. Ms Morris drew my attention to Images 183 and 184 attached to the OCR showing the patches on the walls requiring repairing and repainting. She also drew my attention to Images 258 and 262 which appear to show a bent gate pole. This compares with the photos attached to the ICR which indicates the pole was intact.
3. The Tenants provided the following responses: 1. Blinds: The distant loungeroom photos from the Landlord's ICR are indistinct and it is difficult to tell the condition of the blinds, however the closer images (37 and 39) show some damage. 2. Bedroom 3 walls: There were already marks on the walls at the start of the tenancy. This is shown in Images 220 to 223 of the ICR photos, and referred to in the ICR in the following way: "3x pink painted walls, 1x purple painted wall in average condition. Lots of marks and peeled paint". 3. Garage door handle: The Tenants they do not remember if there was a handle on the door. They note there was no reference to its condition in the ICR and the photos of the handle are indistinct. 4. Gate pole: The Tenants state there was no damage to the gate when they vacated the premises. Any damage done must have occurred in the 6 days between then and when the final inspection was done.
4. I note that the ICR refers to the lounge room blinds as "Missing a few panels - will be replaced". I cannot be satisfied that the condition of the blinds at the end of the tenancy was significantly worse than at the start. I am also not satisfied that the condition of the walls in Lounge 3 is significantly worse than the condition disclosed in the ICR. The photo of the garage door at the end of the tenancy shows the handle missing. The claims relating the garage door handle and the gate pole suffer from the fact that the condition indicated is at 6 days after the Tenants vacated, rather than on the day of, or the day after the tenancy ended. The Tenants have specifically denied damage to the gate pole. They have been thorough in their reports and gave generally acceptable evidence. I have dismissed their claim due to the lack of objective evidence supporting the claims of hazardous substances and contamination, rather than due to any lack of credibility in their evidence. The Landlord has not established that the condition of the gate pole, or the garage door handle was any worse than at the start at the end of the tenancy.
5. For these reasons, I dismiss the Landlord's claim for the cost of handyman repairs.

Lawns

1. The Landlord relies on the Quotation from VIP Lawn and garden maintenance and pest control dated 10 September 2021 for $132 (inc GST) for "Lawn Mowing of front and back yard". Ms Morris refers to the relevant photos and ICR and OCR comments to indicate that the lawns were neat and tidy at the start of the tenancy, and overgrown and requiring mowing and edging at the end of the tenancy.
2. The Tenants respond that the lawns were a little overgrown when they moved in, and that they did mow before they vacated. They suggest that the OCR photos relied on by the Landlord do not show the lawns were overgrown.
3. Having examined the photos., I cannot be satisfied that the condition of the lawns are significantly different between the start and the end of the tenancy. I dismiss this part of the Landlord's claim.

Lock Change

1. The Landlord relies on the Invoice from PVL Locksmiths dated 10 September 2021 for $319 (inc. GST) covering the costs of recoding house locks and renewing a commercial lever set. She also directs me to the key register and photos from 6 August 2021, and the list of keys returned on 3 September 2021, showing there were 2 missing.
2. The Tenants agree they did lose some of the keys, in the process of packing up quickly. They did not think this would be an issue as the agent stated they had spares in the office.
3. I am satisfied that the Tenants have breached their obligation under Section 51(3) of the Act by not returning all keys. The Landlord is entitled to the reasonable costs of re-securing the premises. In the absence of any evidence to the contrary, I allow the amount claimed of $319.

Summary

1. I have allowed the amount claimed by the Landlord for rent arrears of $54.29, water usage of $2.38, break fee of $1520 and locks of $319. I have allowed part of the amounts claimed for removal of belongings and rubbish ($946) and for cleaning ($200). I have dismissed the Landlord's other claims.
2. The total amount which the Tenants must pay the Landlord is therefore $3041.67.
3. I have also dismissed the Tenants' claim, so there is no amount to set off.
4. As the amount payable by the Tenant exceeds the rental bond, I will order payment of the bond in full ($1520) to the Landlord. The balance of the amount payable by the Tenants is $1,521.67. I will order the Tenants to pay this amount to the Landlord on or before 10 March 2022.

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 14 March 2022 - Updated case title DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 March 2022