Babinska v Simpson; Simpson v Babinska [2025] NSWCATCD 142;

(a) 2025/172001: The tenant's application filed on 05 May 2025 seeks an order for the rental bond, pursuant to s 175 of the Residential Tenancies Act 2010 ("the Act").

(b) 2025/00205792: This is the landlord's application filed 29 May 2025, seeking orders for the bond on the grounds of outstanding water usage arrears, and compensation for the costs associated with two damaged floorboards.

1. The parties entered into two fixed term agreements:

(a) 30 September 2024 to 30 November 2024

(b) 01 December 2024 to 28 February 2025

1. On the 22 April 2025 the tenant served a Notice of Termination on the landlord terminating the periodic agreement and giving vacant possession to the landlord on the 22 May 2025.
2. The rent remained at $1,700 per fortnight throughout the tenancy. The parties both complied with the procedural directions in relation to the exchange of the documentary evidence they each intended to rely on in these proceedings.
3. The landlord did not include the claim for the floorboards in the original application, nor did he seek to amend the application. The first time the floorboard damage was raised by the landlord were documents included in his evidence bundle. The tenant raised no objection to the claim for the floorboards proceeding at the hearing.
4. In general terms a landlord bears the evidential burden in relation to any claims he/she may make on a rental bond, as prima facie the bond is the tenant's money and the landlord must satisfy the tribunal on the evidence that he/she has an entitlement to some or all of the bond.
5. The landlord claims the sum of $3,46.94 for the following:

(a) Water usage: $1,881.94

(b) Floorboard repair: $1265

(c) Television bracket: $49

1. The tenant denies liability for the water usage. She did not object to the landlord raising the claim for the floorboards at the hearing.

1. The tenant denies liability for the water usage. The landlord failed to take a meter reading at the commencement and end of the tenancy. The landlord assessed the water usage based on water usage used by previous occupants. The tenant submitted the landlord failed to confirm how many people previously occupied the premises. It was her understanding two people and a dog were living at the premises prior to her occupation.
2. At the request of the landlord the tenant paid the sum of $120 for water usage on the date the parties entered into the fixed term agreement.
3. Apart from the failure to read the meter at the commencement and end of the tenancy, the landlord failed to provide her with copies of the tax invoices from Sydney Water, this was despite her repeated requests for those invoices. The landlord sent the tenant the following invoices for water usage:

(a) Invoice created by the landlord dated 04 October 2024 in the sum of $210.00, with payment requested within 7 days.

(b) Tax invoice issued by Sydney Water 26 February 2025 for water usage from 23 November 2024 to 25 February 2025 in the sum of $1,431.94, including the fixed charges of $169.03.

(c) Invoice created by the landlord dated 12 May 2025 in the sum of $1,901.94, with payment requested 02 June 2025.

1. The tenant says the first time the landlord sought payment from her for water usage was the 22 April 2025, the same day as she served the notice of termination.
2. The complaints raised by the tenant in relation to the invoices created by the landlord is that they fail to specify the actual usage by reference to meter readings; and nor do they state period of usage.
3. The tenant submits the landlord requested payment of the Sydney Water tax invoice more than three months after it was issued. And he failed to give her the 21 days to pay his invoice dated the 04 October 2024.
4. The tenant also denies liability for the Syndey Water tax invoice as it excessively high for one person and says this was due to a leaking toilet which the landlord failed to repair.
5. The landlord acknowledged there was a problem with the toilet leaking at the commencement of the tenancy. On the 03 December 2024 the tenant notified the landlord in writing:

"I think the toilet flush button might have a problem - water is trickling down all the time, have you noticed it when you were here?

To which the landlord responded:

"Touch it a second time and it will stop"

1. On the 27 February 2025 the tenant received an email from the landlord enclosing a copy of the Sydney Water tax invoice issued on 25 February 2025. He pointed out it was "extremely high" and queried whether she had been using a lot of water or taking long showers. The tenant responded the same day and informed him again about the leaking toilet, and said the water was running all the time. She confirmed she had not been using excess water in a way that was out of the ordinary. The landlord again suggested she touch the button twice to stop the flow. He also arranged to undertake an inspection, which took place on the 02 March 2025.

Following his inspection the landlord gave the tenant some rather detailed instructions on how to flush the toilet and stop the flow:

"To flush lift the yellow or white thing so its horizontal/level and just push it. To stop water flowing, lift the thing I circled in red. If still an issue, hold the hose or grab where I put yellow arrow and push to the right about 2 cm. just give it a good wiggle till it works properly.... I'll tell the plumber to come on Tuesday..."

1. The plumber attended on Tuesday 04 March 2025. On the 05 March 2025 the tenant informed the landlord the flush was broken and was not working at all and she was forced to use public toilets. There were further attendances by the plumber who was having trouble finding parts. The toilet was fully repaired on 13 March 2025.
2. The tenant says the huge increase in water usage was due solely to the leaking toilet which the landlord failed to repair.
3. In the alternative, the tenant's case is that she is not liable for any water usage after the end of the first fixed term, being 30 November 2024. On the 02 November 2024, four weeks prior to the end of the fixed term the landlord sent a text message to the tenant in the following terms:

"Got the reference. Am I losing my best tenant. If you want to continue on with another lease I can remove the water bill and get the apartment fully furnished...."

1. The tenant relied on the terms set out in the text message and entered into a second fixed term agreement with the landlord, on the basis that he would remove the water bill.
2. The tenant does not dispute the two floorboards may have had some marks on them at the end of her tenancy, which were not visible at the commencement of the tenancy. She submitted the marks were minimal should be considered fair wear and tear on floorboards that were not brand new at the commencement of her tenancy. She was not informed of the time or date of any outgoing inspection at the end of the tenancy. The landlord has not served any outgoing inspection report. The boards were not pristine at the commencement of the tenancy. The first notice she had of any reference to the floorboards by the landlord was contained in his bundle of evidence served on the 06 July 2025. The photographs relied on by the landlord in support of this claim are undated.
3. For these reasons the tenant denies liability for the claim for compensation for the repair of the floorboards.

1. The landlord agreed the tenant had paid him $120 for water usage for water usage on 30 September 2024, being the first date of the fixed term agreement.
2. The landlord has included with his documents the following three tax invoices issued by Sydney Water. The following invoices are relevant to this tenancy:

(a) Invoice issued 22 November 2024 for period 21.08.24 to 22.11.24

(b) Invoice issued 26 February 2025 for period 23.11.24 to 25.02.25

1. It was the landlord's evidence that during the course of the tenancy only one tax invoice was issued by Sydney Water. He conceded there had been no meter reading taken either at the commencement or end of the tenancy.
2. At the commencement of the tenancy he informed the tenant that there was a small trickle in the toilet. He conceded that he took no steps to repair the toilet at the commencement of the tenancy.
3. He did not dispute the tenant's chronology in relation to her reporting to him on the 03/12/24 of the water "trickling down all the time", and on 27/02/25 being told "it was running all the time". He agreed that he took no steps to have the toilet repaired when was first aware of the fault at the commencement of the tenancy or at the time the tenant reported the increase of flow to him in December 2024.
4. It was only after he received the tax invoice from Sydney Water issued on the 25 February 2025, that he made contact with the tenant and asked her if she was using more water.
5. It was after receipt of the large water usage invoice that he decided to take steps to have a professional plumber attend and undertake the repair. It was finally repaired on 13 March 2025 after several attendances by the plumber.
6. The landlord submitted he was not liable under the Act to undertake any repair of the toilet earlier, as he was not aware of the "extent" of the problem until 27 February 2025.
7. The landlord submitted he was not bound by the content of his text message dated 02 November 2024, in relation to conditions he would agree to if the tenant signed another lease, namely the condition he would pay the water.
8. He submitted the text message said "he can" pay the water, this did not mean that "he would" pay the water if the tenant signed a second lease.
9. He conceded that the invoices he created and issued to the tenant assessed the water usage based on what had been paid by previous tenants or occupants. He did not dispute the tenant's evidence that prior to the commencement of her tenancy there were two people and a dog living at the property.
10. The landlord also conceded that he included the fixed charges on the Sydney Water tax invoice which is before the Tribunal. He did not say whether the fixed charges were included in the two invoices he created and issued to the tenant on 04 October 2024 and 12 May 2025.
11. He conceded that in relation to his claim for compensation the tenant was not informed of any outgoing inspection, although he said he did undertake an outgoing inspection one week after the tenant vacated. He agreed the photographs upon which he relies are undated, no formal claim was ever made for compensation for the floorboards until the day of the hearing being 11 August 2025.
12. He said the floorboards were approximately four years old at the end of the tenancy and agreed there would therefore be some deduction for depreciation.

1. In relation to the landlord's evidence generally it appears to me that he had very limited understanding of his obligations under the Act. Ignorance is no excuse for failure to comply with those obligations.
2. Although the landlord said there was only one tax invoice issued by Sydney Water during the tenancy, this is clearly incorrect. He has provided two invoices which are referred to above. The first of these invoices covers a partial period of the tenancy. The landlord failed to obtain a meter reading at the commencement of the tenancy, which would have allowed him to assess with some precision the tenant's liability for water usage from the date of the commencement of the tenancy. Instead he erroneously assessed her usage based on the usage of the former occupants.
3. The Tribunal is satisfied the tenant was asked to pay the land the sum of $120 for water usage on the date of the commencement of the fixed term agreement, 30 September 2024. The Tribunal is satisfied this charge is not based on any water usage consumed by the tenant, and therefore was paid to the landlord contrary to the Act.
4. He only ever provided the tenant with one copy of the water bill issued by Sydney Water, which is the one issued on 25 February 2025. He requested the tenant pay for water charges during the entire tenancy which included that included the "Fixed Charges". This continued up to 02 June 2025 when the landlord was continuing to request tenant pay amounts assessed by him including the fixed charges, dating back to 30 September 2024. The Tribunal is satisfied the landlord was ignorant to the fact that the tenant was not liable for any fixed charges which appear on the tax invoices issued by Sydney Water.
5. The Tribunal finds the tenant is not liable to pay the landlord for the tax invoice issued by Sydney Water on the 26 February 2025 for usage charges from 24 November 2025 to 25 February 2025 in the sum of $1,262.91.
6. On his own evidence the landlord was aware of a leak in toilet from the commencement of the tenancy. He took no steps to arrange for any repair by a professional plumber until March 2025, notwithstanding the tenant notifying him of the increasing leak in December 2024 and again in February 2025.
7. The landlord has an obligation under the Act to undertake repairs. A landlord cannot on the one hand ignore a water leak from the commencement of the tenancy on 30 September, which he is told is increasing in flow in December and is told it has become worse in February later and then arrange for a plumber to attend in March, and on the other hand make a request for the tenant to pay the excessive water bill. The Tribunal accepts the tenant's evidence that by the 05 March 2025 the toilet would not flush and she was forced to use public toilets until it was finally repaired on 13 March 2025 after several attendances by the plumber. The tenant makes no claim for compensation for the loss of amenity. However, the Tribunal finds the failure to repair did result in a loss of amenity and caused inconvenience to the tenant.
8. The Tribunal is satisfied the excessive water bill was the result of the unrepaired water leak that was apparent from the commencement of the tenancy to the date it was finally repaired on 13 March 2025. And accordingly, the tenant is not liable for any water charges for that period.
9. The Tribunal finds the tenant is not liable to pay for any water usage charges from the 14 March 2025 to the 22 April 2025 as the landlord has failed to provide the tenant with a copy of the Sydney Water tax invoice covering that period or any evidence of a meter reading at the end of the tenancy.
10. For these reasons the landlord's claim for the tenant to pay for the water charges is dismissed.
11. On or about the 04 July 2025 the landlord sought an extension of the timetable for the service of evidence made by the Tribunal on the 04 June 2025. Attached to that request the landlord referred to requiring additional time to obtain evidence to ascertain the cost of damage caused by the tenant. He also attached a copy of a photograph of floorboards. The Tribunal is not satisfied the landlord sent a copy of this material or the covering letter to the tenant at that time.
12. The Tribunal is satisfied the landlord did not inform the tenant of the time and date of the outgoing inspection.
13. There is no outgoing inspection report, either before the Tribunal or evidence such a report was served on the tenant.
14. The Tribunal is satisfied the photographs relied on by the landlord are not date stamped.
15. The tribunal is satisfied the landlord did not make any formal application to amend his original application at any time prior to the hearing on the 11 August 2025.
16. Accordingly the Tribunal is not satisfied that the landlord's for compensation for damage to the floorboards claim was made within three months of first becoming aware of the breach. The tenant vacated on the 22 May 2025 and the first formal claim raised by the landlord for damage to the floorboards was at the hearing on the 11 August 2025.
17. For all of the above reasons the landlord's application for compensation is dismissed.

1. For all of the above reasons the Tribunal makes the following orders in the following applications:

(1) Rental Bond Services is directed to pay the tenant Marcelina Babinska the whole of the rental bond number P607672-2.

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.