plaintiff. Respondent Black Dog Ashgrove P/L ordered to pay applicants $3,195.40 compensation; principal registrar directed to correct Tribunal register to state claim under sections 452 and 472 of the...
Key principles
A residential rental provider contravenes section 68(1)(a) and (b) of the Residential Tenancies Act 1997 (Vic) where it fails, or does not intend to, remove mould from rented...
Where a Tribunal order requires that 'all mould ... must be removed', compliance requires actual removal (including affected drywall and ceiling cavities where necessary) rather...
When remediation methods proposed by a rental provider would themselves pose a significant health risk to a particular renter (here, severe mould sensitivity/anaphylaxis), the...
A corporation incorporated under the Corporations Act is not a 'resident' of a different State for the purpose of disputing VCAT's jurisdiction on interstate residency grounds;...
Issues before the court
Does VCAT have jurisdiction where the respondent is an interstate incorporated entity?
Did the rental provider breach duties under sections 68(1)(a) and (b) by failing to remove mould to render the premises fit and in good repair?
Plain English Summary
VCAT found that the landlord (an incorporated rental provider) breached obligations under section 68 of the Residential Tenancies Act by failing to remove mould from the rented house as ordered. Expert evidence showed chemical treatment and fogging would not remove mould and would have been hazardous to a renter with severe mould sensitivity. The tenants' refusal to permit unsafe treatment was justified. VCAT awarded $3,195.40 in compensation after assessing loss of use, partial replacement of clothing, and $1,000 for inconvenience, and dismissed several other claims due to mitigation, lack of causation or speculative loss. VCAT also confirmed it had jurisdiction over the incorporated respondent and corrected the registry entry to reflect the correct statutory basis for the claim.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
Deep Dive
1,953 words · generated 29/07/2026
What happened
Were the renters' refusals to permit access and to accept proposed remediation unreasonable and disentitled them from compensation?
What compensation is appropriate for loss of use, discard of belongings, moving costs and inconvenience?
Cited legislation
3 cited instruments linked from this judgment.
This VCAT decision arises from a mould infestation at rented premises and the Tribunal's earlier urgent repairs order. The rental agreement began on 6 February 2021. The tenants discovered a leak and mould under the laundry sink on 18 August 2021 and notified the rental provider on 19 August 2021 (Background [2]-[3]). The provider arranged initial trades attendance and a plumber fixed the leak on 27 August 2021 (Background [4]). Tradespeople proposed chemical wiping and fogging rather than removal of water‑damaged drywall; the tenants, one of whom (Ms Blatt) has severe mould sensitivity, rejected the proposed fogging on health grounds and sought an independent mould assessment (Background [6]-[9], [12]).
On 30 September 2021 VCAT heard an urgent repairs application and ordered that "All mould at the rented premises must be removed, and all remediation work required as a consequence of mouuld damage, must be completed by 11 November 2021" (Introduction [1]; Background [14]). The provider planned spraying and fogging of the house in November. The tenants obtained an independent mould report from Dr Cameron Jones (Report) that recommended cutting out and replacing affected building fabric (Background [12]; Evidence [3]-[4]). The tenants refused to permit certain trades to undertake fogging that would be hazardous for Ms Blatt; the Mould Doctor ultimately indicated it would not perform demolition remediation the provider had not authorised (Background [20]-[21], [23]).
The tenants vacated the premises on 19 December 2021. They brought a claim for compensation under ss452 and 472 RTA, seeking a range of losses totalling $17,146.41. The provider submitted that it had made reasonable remediation efforts, that the tenants unreasonably delayed access, that tenants could not dictate remediation, and that any specialised remediation for a mould‑sensitive tenant was not required for a hypothetical standard tenant (Rental Provider's Position).
VCAT (Member I Scott) heard evidence on 7 August 2023 and delivered reasons on 13 September 2023. The Tribunal found the provider had contravened s68(1)(a) and (b) by not removing mould and awarding compensation totalling $3,195.40, and directed a registry correction to record the statutory basis as ss452 and 472 RTA (Order).
Why the court decided this way
Key factual and legal points underlying the decision:
Expert evidence: Dr Jones, microbiologist/mycologist, provided an unchallenged Report advising that mould had become airborne, was present beyond the laundry, exceeded acceptable levels, and required cutting out of affected materials and remediation in line with industry standards. He stated fogging does not remove mould (Evidence [3]-[4]; Discussion [12]).
What the provider proposed: The provider's initial trades proposed wiping/chemical treatment, and the engaged Mould Doctor proposed spraying and fogging rather than removal of drywall; those measures would not remove mould from affected cavities and fabric (Background [6], [15]; Evidence [6]).
The statutory standard: Section 68(1)(a) and (b) require premises be provided and maintained in good repair and in a reasonably fit and suitable condition for occupation (Relevant law). Schedule 4 rental minimum standards require rooms be free from mould and damp due to building structure.
Safety of remediation for actual renter: The Tribunal recognised that a renter with severe mould sensitivity could be endangered by fogging. The duty under s68(1)(b) was therefore interpreted as requiring remediation appropriate for the actual renters' circumstances, not merely a standard hypothetical tenant (Discussion [4]-[5], [13]).
Reasonable access and notice: Although tenants initially refused entry and thereby delayed trades, the Tribunal found that refusal was justified in the circumstances because the planned works would not have complied with the Tribunal order to remove mould and would have been hazardous (Discussion [6]-[7], [11]).
Mitigation and assessment of loss: On compensation, the Tribunal applied mitigation principles. It rejected or reduced many claims where the tenants had not minimised loss, where items could be disinfected rather than replaced, where proof of second‑hand value was missing, or where claims were speculative (Compensation section).
From these factual findings and legal principles, the Tribunal concluded that the provider breached s68 by failing to remove mould and failing to comply with the earlier VCAT order. The Tribunal then calculated appropriate compensation, distinguishing between proven losses and unproven/speculative claims, and awarded compensation for loss of use, clothes replacement (partial), and inconvenience.
Before and after state of the law
Before this decision:
The legal framework under the Residential Tenancies Act 1997 (Vic) already obliged rental providers to maintain premises in good repair and fit for occupation (s68), to ensure quiet enjoyment (s67), and set minimum rental standards including freedom from mould/damp (Schedule 4 Regulations). Tribunal powers to award compensation are found in ss452 and 472.
How this decision clarifies or emphasises the law:
The decision reiterates that compliance with Tribunal orders (here, to "remove" all mould) entails actual remediation of affected building fabric where industry standards require removal and replacement, rather than merely treating visible mould or fogging. The Tribunal explicitly accepted the expert proposition that fogging does not remove mould (Discussion [11]-[12]).
The decision importantly clarifies that the duty under s68(1)(b) must be applied with respect to the actual renters and their health circumstances. Where remediation methods proposed by a rental provider would render the premises unsafe for a particular occupant (due to sensitivities), the landlord's obligations require remediation compatible with occupation by that person (Discussion [4]-[5], [13]). This is a practical elaboration rather than a new statutory rule, but it is significant for remedial standards in mould cases.
The decision also confirms that an incorporated entity cannot defeat VCAT jurisdiction by claiming to be a resident of another State; only natural persons can be 'residents' in that sense (Introduction [3]-[4]).
Key passages with plain-English translation
Tribunal order quoted in reasons:
Text: "All mould at the rented premises must be removed, and all remediation work required as a consequence of mouuld damage, must be completed by 11 November 2021."
Plain English: VCAT previously ordered the landlord to actually remove any mould and repair any building parts damaged by mould by 11 November 2021. Chemical treatments alone would not satisfy that order if mould and damaged materials remained.
On renters' ability to dictate remedies:
Text: "Renters do not have the right to dictate what remediation works the residential rental provider must undertake..."
Plain English: Tenants cannot ordinarily tell a landlord exactly how to fix things; landlords can choose how to comply. But that choice must actually solve the problem and be safe for the people living there.
On duty to the actual renter:
Text: "Any mould remediation works to be undertaken by the Rental Provider must take into account the Renters' particular health situation... by the actual Renters as opposed to a hypothetical standard renter."
Plain English: The landlord must ensure the repairs make the rental fit for the actual people living there, not just for a hypothetical healthy person. If a repair method would harm a tenant, it is not acceptable.
On fogging:
Text: "Fogging doesn't remove mould."
Plain English: Using a chemical fog to sanitise the air will not remove mould growing inside walls or ceilings; it is not a substitute for removing contaminated building fabric.
On reasonable remediation time:
Text: "I consider 14 days to be a reasonable period of time to allow for the Rental Provider, once notified of the mould issue, to be able to remove the mould..."
Plain English: The Tribunal considered that, after being told about the mould, a landlord should generally be able to carry out proper removal within about two weeks if they act reasonably.
What fact patterns trigger this precedent
This decision will be directly relevant where these elements appear:
The rental provider proposes chemical treatment, spraying or fogging as the primary remediation method, while an expert identifies that removal of contaminated building materials is required under industry standards; and the Tribunal has ordered removal of mould.
A renter has documented medical sensitivity to mould whereby the landlord's proposed remediation (fogging or chemical spraying) would pose a health risk to that tenant.
The landlord attempts to rely on the tenant's refusal to permit access or to insist on a particular remediation method as a defence to liability for continued mould or for refusal to comply with an order.
Cases where the tenant seeks compensation for loss of use, replacement of property, motel or moving costs, or non‑pecuniary inconvenience, and mitigation/causation issues arise.
Disputes where jurisdiction is challenged on the basis that the respondent is an interstate corporation.
If an item of fact or evidence deviates (no expert report, the proposed treatment would actually remove mould, no health vulnerability, or tenant consent to treatment), the decision's force is diminished.
How later courts have treated it
As of the decision date (13 September 2023) the Tribunal relies on precedent authorities cited in the footnotes for ancillary propositions (jurisdiction, quiet‑enjoyment authorities). The Tribunal applied those authorities to the immediate questions of jurisdiction and the scope of quiet enjoyment. The decision itself is a VCAT member's determinative statement within the Victorian Tribunal system and will be persuasive in later VCAT matters involving mould remediation and tenant health vulnerabilities. Future courts and tribunals are likely to treat these findings as persuasive practice guidance: that industry standard remediation (including removal of contaminated fabric) is required to meet s68, and that remediation must be compatible with actual tenant health, not just a hypothetical standard tenant.
Practitioners should watch for subsequent VCAT decisions or higher court appellate determinations addressing whether the particular articulation that s68 requires consideration of actual renter health will be followed, limited or refined. The decision is most directly binding within VCAT's Residential Tenancies jurisdiction as precedent for subsequent Tribunal panels.
Still-open questions
Scope and limits of "actual renter" standard: The Tribunal applied s68 with regard to the actual renter's health. Questions remain about the limits of that principle. How severe must health vulnerabilities be before the landlord is obliged to adopt more expensive or intrusive remediation? What if accommodating an individual renter would impose disproportionate cost? The decision recognises the duty but does not set a general cost‑allocation rule.
Procedural expectations for remediation sequencing: The Tribunal accepted that staged remediation could have been acceptable (initial treatment, then escalation). Where a staged approach is proposed, what procedural steps should landlords take to demonstrate reasonableness, especially as to notice, temporary relocation offers and proof that initial treatments were appropriate to try first? This case suggests landlords should document proper industry advice and contingency plans.
Quantifying the reasonable remediation period: The member considered 14 days reasonable in this case. That is context‑specific. Different premises, extent of mould and availability of trades could justify different periods. There is no general rule fixed here beyond the member's assessment.
Evidence thresholds for replacement claims: The decision emphasises mitigation and proving real loss (second‑hand value vs replacement cost). Future panels will need to decide acceptable evidentiary proofs to award replacement values (receipts, evidence of reduced resale value due to contamination, quotes for disinfection).
Interaction with insurance and third parties: The decision does not address how insurers, landlords' contractors, or building owners' repair obligations under other statutes interact with s68 obligations where remediation is expensive or contested.
Appellate treatment and wider precedential weight: This is a single VCAT decision. Whether the approach to "actual renter" remediation duties will be endorsed by higher courts on appeal, thereby becoming binding law, remains open.
Practical takeaway for practitioners: obtain early, qualified expert mould reports; document all remediation proposals and communications; landlords should consider tenant health vulnerabilities and offer safe, effective remediation including temporary re‑housing where necessary; tenants should preserve evidence of mitigation and second‑hand values for discarded items.
Judgment (48 paragraphs)
[1]
Blatt v Black Dog Ashgrove (Residential Tenancies) [2023] VCAT 1060 (13 September 2023)
[2]
Application for compensation by renter - alleged breach of duties by the residential rental provider regarding the presence of mould at the rented premises - sections 65A, 67, 68, 452 and 472 of the Residential Tenancies Act 1997 (Vic) - failure to comply with orders of the Tribunal to remove mould - jurisdiction of the Tribunal where alleged interstate party is incorporated - renter's sensitivity to mould and mould treatment considered.
[3]
Blatt v Black Dog Ashgrove (Residential Tenancies) [2023] VCAT 1060
[4]
For the written reasons provided, VCAT orders and directs:
[5]
The respondent must pay compensation to the applicants fixed in the sum of $3,195.40.
The principal registrar is directed to correct the Tribunal register to reflect that the applicants' claim was for compensation under sections 452 and 472 of the Residential Tenancies Act 1997.
[6]
Second Applicant in person with Ms V Saunders, solicitor
[7]
On 30 September 2021, the Tribunal heard the renters' application for urgent repairs under section 73 of the Residential Tenancies Act 1997 (Vic) (the 'Act') and made findings including that the Respondent ('Rental Provider') was in breach of the duty to maintain the rented premises in good repair and ordered that the Rental Provider carry out the following urgent repairs:
[8]
All mould at the rented premises must be removed, and all remediation work required as a consequence of mouuld[sic]damage, must be completed by 11 November 2021.
[9]
The Applicants ('Renters') renewed their application to claim compensation from the Rental Provider within the time ordered by the Tribunal and I heard the Renters' claim for compensation and reserved my decision because the Renters requested written reasons.
The hearing was erroneously listed by VCAT as being under section 120 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (which relates to applications to re-open an order) and so I direct that the Tribunal register be corrected to state that the Renters' claim was made under sections 452 and 472 of the Act which relevantly relates to the Tribunal's general power to hear and determine disputes between renters and residential rental providers.
The Rental Provider withdrew its jurisdictional objection at the hearing that VCAT didn't have jurisdiction to hear the proceeding because the Rental Provider resided in Queensland on the basis that, as the Rental Provider was incorporated and not a natural person, the Rental Provider is not a resident of a different State.
For the sake of completeness, I am satisfied that VCAT does have jurisdiction to hear the Renters' application because only natural persons can be 'residents' of different states and, as such, a corporation incorporated under the Corporations Act 2001 (Cth) is not considered to be resident in any State.[1]
The Rental Provider also sought to reagitate the Tribunal's findings made on 30 September 2021, that the Rental Provider was in breach of the duty to maintain the rented premises in good repair which I refused to consider at the hearing on the basis that the Rental Provider appeared at the hearing on 30 September 2021, evidence of both the Renters and the Rental Provider was heard and, having considered the evidence, the Tribunal's findings of fact were made. The Rental Provider also did not seek to appeal the Tribunal's orders dated 30 September 2021.
[10]
The rental agreement between the Renters and the Rental Provider commenced on 6 February 2021 and was for a fixed term of 12 months.
On 18 August 2021, the Renters noticed a smell in the laundry and after further investigation found that leaking water had pooled in the cavity under the laundry sink cupboard that was not visible until the Renters put a hole in the kickboard area which, after they did, water that had been pooling under the sink cupboard for some time came gushing out. The area was also affected by mould and the drywall behind laundry cupboard was wet with absorbed water.
On 19 August 2021, the Renters notified the Rental Provider of a mould issue in the laundry due to a leak and informed the Rental Provider that one of the Renters, Linda Blatt, was very sensitive to mould.
On 20 August 2021, the Rental Provider sent a work order to its plumber and the plumber attended the rented premises to fix the leak on 27 August 2021.
Between 20 August 2021 and 24 August 2021, the Renters advised the Rental Provider that mould was present under the laundry sink. On 24 August 2021, the Rental Provider sent a work order to its tradesperson to investigate the mould issue and to quote for works.
On 30 August 2021, the Rental Provider's tradesperson, Steve Valena, attended the rented premises and informed the Renters that he planned to wipe away the surface mould by applying a chemical killing treatment to the area and wouldn't be removing and replacing the drywall.
The Renters informed the Rental Provider that they weren't happy with Mr Valena's plan for dealing with the mould issue because, in their opinion, it was akin to just painting over the mould which could cause a larger problem and health hazard.
On 31 August 2021, the Renters emailed the Rental Provider to see what was going to be done about the mould issue and requested another assessment be completed by a professional mould inspector as soon as possible. The Rental Provider's agent confirmed that they had sent the Renters' request to the Rental Provider for further instructions.
On 6 September 2021, Mr Valena texted the Renters that he could attend to treat the mould on 8 September 2021. The Renters replied that they were going to hold off on the work for the moment, but did not explain to Mr Valena the reason being that they were in the process of obtaining a second opinion about the mould issue and were concerned that Mr Valena's plan to deal with the mould would have the effect of aggravating the mould spores and releasing more mycotoxins into the air. Mr Valena was refused entry to the rented premises by the Renters on 8 September 2021.
[11]
The Renters claimed that the Rental Provider breached its duties under sections 65A, 67 and 68 of the Act by failing to maintain the rented premises in good repair and in a reasonably fit and suitable condition for occupation, by failing to take all reasonable steps to ensure that the Renters have quiet enjoyment of the rented premises during the residential rental agreement and by failing to ensure that rented premises comply with the prescribed rental minimum standards in relation to the presence of mould at the rented premises.
The Renters' position was that none of the Rental Provider's planned mould remediation works would have actually removed the mould at the rented premises as ordered by VCAT on 30 September 2021 and so, as a result, they had no option but to vacate the rented premises prior to the end of the rental agreement and, for a period during the term of the rental agreement, had to stay in motels and in a tent in the backyard of the rented premises to obtain some relief from the mould infestation. The Renters also claimed compensation for belongings they say had to be discarded due to the mould infestation at the rented premises. The Renters deny that they inappropriately refused the Rental Provider's tradespeople access to the rented premises in relation to the mould issue.
The Renters claimed the following amounts as compensation:
[12]
a) $6,185.42 (loss of use of the rented house)
>
> b) $1,000.00 (inconvenience and hardship)
>
> c) $1,120.00 (Molekule air filter)
>
> d) $1,695.00 (Zenna mattress)
>
> e) $1,265.00 (Clothes discarded)
>
> f) $2,633.00 (moving costs)
>
> g) $1,699.00 (couch)
>
> h) $785.00 (motel stay)
[13]
The Rental Provider's position was that it did everything it could reasonably do within a reasonable period of time to attempt to remediate the mould issue, but its tradespeople were not granted access to the rented premises by the Renters or access was otherwise delayed by the Renters because the Renters didn't believe that the Rental Provider's planned remediation works were an acceptable solution to the mould issue. Regardless of the Renters' views, the Rental Provider maintains that the Renters do not have the right to dictate what remediation works the Rental Provider must undertake to remediate the mould issue nor refuse their tradespeople access to the rented premises and the request to have the drywall removed was not the least expensive available option.
Furthermore, the Renters did not know for certain that the Mould Doctor's planned remediation works would not solve the mould issue and so they should have allowed the Mould Doctor's planned treatment to proceed. In the event that the Mould Doctor's treatment didn't work, the Rental Provider says that it would then have proceeded to the next level of mould remediation works. As a result, by not allowing the Mould Doctor's planned mould remediation treatment to proceed, the Renters have failed to mitigate their losses which, in the event the Renters' claim is successful, need to be properly depreciated.
Additionally, the Rental Provider submitted that it should only have to complete mould remediation works suitable for a hypothetical standard renter, that is, a renter without mould sensitive health conditions, and not have to complete special or additional mould remediation works required to accommodate a renter with such conditions.
[14]
(1) a residential rental provider must ensure that rented premises comply with prescribed rental minimum standards on or before the day on which the renter enters into occupation of the premises.
(2) If rented premises do not comply with the rental minimum standards on or immediately after the day on which the renter enters into occupation of the premises, the renter may issue a request to the residential rental provider for urgent repairs to be carried out to the premises to ensure that the premises comply with the standards.
A residential rental provider must take all reasonable steps to ensure that the renter has quiet enjoyment of the rented premises during the residential rental agreement_._
(1) A residential rental provider _must ensure that the rented premises are provided and maintained - _
[23]
(a) in good repair; and
(b) in a reasonably fit and suitable condition for occupation.
[24]
_(1) A residential rental provider or a renter under a residential rental agreement may apply to the Tribunal if - _
[25]
(a) a dispute has arisen under the residential rental agreement; or
[26]
(b) there has been a breach of the residential rental agreement or of the provisions of this Act relating to the residential rental agreement.
[27]
_(1) The Tribunal, on an application to or in proceedings before it, may make any orders it thinks fit - _
[28]
(f) to require the payment of compensation to any person; ...
[29]
Mr Benson-Bunch gave evidence on behalf of the Renters. Mr Benson-Bunch gave evidence about the compensation claimed by the Renters (which I consider below) and gave evidence about the Mould Doctor's plan to treat the mould which he says would not remove the mould at the rented premises but would only help to control the mould. Mr Benson-Bunch's evidence was also that the Mould Doctor's planned mould treatment, being to treat and sanitise the mould affected areas to remove visible mould and to eliminate airborne mould spores by way of a decontamination fogging using an Industrial Sanitiser Chemical utilising Natural Tea Tree Oil, was not approved by the Therapeutic Goods Administration and would make Ms Blatt even sicker. Mr Benson-Bunch otherwise deferred to the evidence of Dr Jones regarding the mould issue.
Under cross-examination, Mr Benson-Bunch maintained that rooms, in addition to the laundry at the rented premises, were contaminated by mould or mould spores and that the Renters did not deny the Mould Doctor access to the rented premises as it attended on 1 October 2021 to quote for the works, a further planned attendance by the Mould Doctor in mid-October had to be rescheduled due to Ms Blatt exhibiting COVID-19 symptoms and then, on 17 October 2021, the Mould Doctor withdrew its services because it couldn't undertake its mould treatment due to the Renters' health concerns.
Dr Jones, a microbiologist/mycologist with a PhD in fungi from Swinburne University, appeared as a witness for the Renters and gave evidence regarding the Report which was 52 pages in length and very scientific in nature. Dr Jones' evidence was not challenged by the Rental Provider, and I accept that Dr Jones is qualified to give evidence regarding mould and mould treatment. At the hearing, I asked Dr Jones to explain the Report in layperson's terms.
Dr Jones' evidence was that the mould in the cavity under the laundry sink had become airborne, was in all the rooms of the house, was above acceptable standards and that the recommended course of action, which was in line with the relevant industry standards, was to cut out the areas affected by mould and have them remediated. Dr Jones' evidence was also that fogging doesn't remove mould and that while some personal items affected by mould, like a washing machine, could be successfully disinfected others, like a mattress and a couch, could not be successfully disinfected.
[30]
It is fair to say that this was a very difficult situation for all the parties involved and especially for Ms Blatt whose sensitivity to mould and the Rental Provider's planned mould treatment could, at worst, be life threatening. Nevertheless, I accept the Rental Provider's submission that renters do not have the right to dictate what remediation works a residential rental provider must undertake to comply with section 68(1)(a) and (b) of the Act.
Had Ms Blatt not been sensitive to mould and the Rental provider's planned mould treatment, the Rental Provider could have been provided access to the rented premises in order to undertake a staged process of mould remediation works which, for example, if Mr Valena's planned mould treatment had not worked, then the Rental Provider could have engaged the Mould Doctor's services and, had that not worked, the Rental Provider could have considered other options such as removal of the drywall and other affected areas.
I also note that, before the Tribunal's finding on 30 September 2021 that the Rental Provider was in breach of its duty to maintain the rented premises in good repair and when the Rental Provider was still disputing the cause of the leak, the Rental Provider had sent Mr Valena to attempt to remediate the mould issue and had engaged the Mould Doctor to attend the rented premises and so I accept that the Rental Provider had made genuine attempts to remediate the mould issue in a timely manner.
In Ms Blatt's circumstances though, and given the Rental Provider has a duty under section 68(1)(b) of the Act to "ensure that the rented premises are... maintained in a... reasonably fit and suitable condition for occupation", I am of the view that any mould remediation works to be undertaken by the Rental Provider must take into account the Renters' particular health situation by maintaining the rented premises in a reasonably fit and suitable condition for occupation by the actual Renters as opposed to a hypothetical standard renter without mould and mould treatment sensitive health conditions.
I accept the Renters' evidence that the planned fogging of the house at the rented premises would have been hazardous to Ms Blatt's health and so it follows that the Rental Provider's planned fogging of the house at the rented premises would have, in the particular circumstances of the Renters, contravened if the Act. There was no evidence from the Rental Provider that it planned to pay for the Renters to stay somewhere other than at the rented premises whilst the fogging took place and until it was safe for the Renters to return to the rented premises.
[31]
The rent was $1,912.00 per calendar month which equates to a daily rate of $62.86. The Renters notified the Rental Provider of the mould issue on 19 August 2021 and vacated the rented premises on 19 December 2021 being 123 days after the Rental Provider was notified of the mould issue. The Renters claimed compensation in the amount of $6,185.42 being 80% of the rent paid from 19 August 2021 to 19 December 2021.
The Renters' argument was that, by failing to remove all of the mould at the rented premises, the Rental Provider has contravened section 67 of the Act by failing to take all reasonable steps to ensure that the Renters have quiet enjoyment of the rented premises during the residential rental agreement.
I do not accept that the Rental Provider's failure to remove all of the mould at the rented premises amounts to a contravention of section 67 of the Act because the notion of quiet enjoyment of a rented premises at common law relates to the renter being able to live in peace and quiet, and without any unnecessary interruptions or disruptions by the Rental Provider or its servants and agents such as unlawfully entering the rented premises.[3]
There was no evidence that the Rental Provider or its servants or agents caused any unnecessary interruptions or disruptions to the Renters' quiet enjoyment of the rented premises because the Renters either consented to Mr Valena and the Mould Doctor entering the rented premises to quote for works or otherwise refused consent to Rental Provider's tradespeople to attend the rented premises to undertake mould remediation works.
As to the mould issue itself, whilst I accept that there can sometimes be an overlap between sections 67 and 68 of the Act, in the Renters particular situation, I consider the mould issue to be related solely to the Rental Provider's duties under and not of the Act and note that the Renters cannot obtain two separate awards of compensation for effectively the same issue being their alleged loss of use of the house at the rented premises due to the mould issue.
[32]
DUTY TO MAINTAIN RENTED PREMISES IN A REASONABLY FIT AND SUITABLE CONDITION FOR OCCUPATION
[33]
Nevertheless, based on the unchallenged evidence of Dr Jones, I am satisfied that, by not removing or intending to remove all of the mould at the rented premises, the Rental Provider has contravened section 68(1)(a) and (b) of the Act by not maintaining the rented premises in good repair and in a reasonably fit and suitable condition for occupation by the Renters and, as a result, the Renters lost a substantial amount of use of the rented premises from 19 August 2021 until 19 December 2021 despite still paying full rent.
The Renters' evidence was that they pitched a tent in the backyard and, from 19 August 2021, slept every night in the tent in order to avoid the mould infestation, unless they had alternative accommodation. Nevertheless, the Renters' personal belongings remained in the house at the rented premises and, it appears from the evidence or lack thereof, that the Renters were still using the rented premises for daily activities such as cooking, washing clothes and showering.
As a result, I consider the Renters' claim for compensation based on the amount of 80% of the rent paid from 19 August 2021 to 19 December 2021 to be excessive. This is because, no amount of reasonable time as been allowed for the Rental Provider, once notified of the mould issue, to take appropriate action to remedy the breach and, given the Renters only stayed out of the house at the rented premises completely at night whilst sleeping, they have effectively only lost the equivalent of 8 hours use per day of the house at the rented premises. Additionally, the Renters' personal belongings were still in the house at the rented premises which means that the Renters were still in part using the house at the rented premises 24 hours per day and also still had use of the outside arears of the rented premises.
In the circumstances, I consider 14 days to be a reasonable period of time to allow for the Rental Provider, once notified of the mould issue, to be able to remove the mould from the rented premises. I also consider that, taking into account that the Renters stayed completely out of the house at the rented premises for the equivalent of 8 hours per day due to the mould issue (being the equivalent of one third of the daily rent) but were still in use of the house at the rented premises for daily activities and for storage of their personal belongings and still had use of the outside areas at the rented premises, compensation in the amount of 25% of the rent paid from 2 September 2021 until 19 December 2021 is appropriate in the circumstances.
[34]
The Renters also sought an order for compensation in relation to a number of personal items they say had to be discarded and replaced due to being infected by mould.
[35]
The Renters claimed $593.99 which was paid to replace their used washing machine with a new washing machine. Dr Jones' evidence in relation to the washing machine was that it and similar items could be successfully disinfected, as opposed to items like a mattress and a couch, and so do not need to be disposed of and replaced. On this basis, I accept that the washing machine did not need to be disposed of as it could have been disinfected by the Renters. The Renters' claim for compensation in relation to the purchase of a new washing machine is therefore dismissed.
[36]
The Renters claimed $1,265.00 to replace their used clothes with new clothes and provided a screen shot of an online purchase totalling $964.95 which included free shipping. I accept the evidence of Dr Jones that items such as clothes, being similar in composition to a mattress or a couch, may not be able to be successfully disinfected and would need to be discarded by the Renters. I accept that the Renters have proved that they spent $964.95 on replacing mould contaminated clothes but I do not accept that the Renters have minimised their loss as what they have really lost is the value of their used second-hand clothes about which no evidence was presented. The Renters submitted at the hearing that they should be compensated by the Rental Provider for half of the cost of the new clothes which would equate to the value of the clothes they had to discard.
In the absence of any other evidence or submissions, I accept the Renters' submission regarding the value of their clothes and so will order the Rental Provider to pay the Renters compensation in the amount of $482.47 being half of the amount the Renters proved they spent on replacing mould infected clothes as a result of the Rental Provider's contravention of section 68(1)(a) and (b) of the Act.
[37]
The Renters claimed $1,695.00 being the cost of a new mattress to replace a used Zenna mattress that they subsequently sold for $300.00 and provided an invoice from Zenna for the same. I accept the evidence of Dr Jones that items such as mattresses may not be able to be disinfected but I do not accept that the Renters have suffered any loss regarding their used mattress because what they would have really lost, had the used mattress actually been discarded, is the value of their used mattress which I accept was $300.00 being its sold price.
No evidence was presented by the Renters that the sold price of their second-hand mattress was discounted due to possible mould contamination. As a result, because the Renters managed to sell their used mattress for $300.00, I find that the Renters have fully mitigated their potential loss and so have not suffered any loss in relation to selling their used mattress for $300.00 as a result of the Rental Provider's contravention of section 68(1)(a) and (b) of the Act. The Renters' claim for compensation regarding their mattress is therefore dismissed.
[38]
The Renters claimed $1,699.00 which was paid by them to replace their 10 year old leather couch with a new couch and provided a receipt for the same from a furniture store. I accept the evidence of Dr Jones that a couch may not be successfully disinfected but I do not accept that the Renters have minimised their loss as what they have really lost is the value of their 10 year old couch that they have discarded about which no evidence was presented. The Renters submitted at the hearing that they should be compensated by the Rental Provider for half of the cost of the new couch which would equate to the value of the couch they had to discard.
Given the Renters were able to sell their used mattress, it logically follows that if their 10 year old leather couch was worth $849.50 then the Renters would have also been able to sell their couch for a figure in the hundreds dollars rather than just discard the couch. There was no evidence from the Renters that the couch was in anyway more infected by mould than the mattress which meant that it could not be sold or was of no value due to mould contamination.
As a result, I find that the Renters have either failed to mitigate their loss because the couch could have been sold by them for its true second hand value or, alternatively, if the couch couldn't have been sold because it was of no value, then the Renters have not suffered any loss regarding the couch as a result of the Rental Provider's contravention of section 68(1)(a) and (b) of the Act. Therefore, the Renters' claim in relation to the couch is dismissed.
[39]
The Renters spent a total of $955.00 on two separate motel stays in an effort to escape the mould infestation at the rented premises. The Renters' evidence was also that they temporarily stayed at Ms Blatt's grandmother's house on several occasions in order to escape the mould infestation at the rented premises in Rosebud. No evidence was provided as to why the Renters had to pay to stay in a motel on two occasions rather than stay free of charge at Ms Blatt's grandmother's house on those same two occasions. Additionally, no evidence was given as to why the motel the Renters chose to stay in was in or near Ocean Grove which is 188 kilometres away from Rosebud via Melbourne or about 50 kilometres away via sea ferry.
As a result, I'm not satisfied on the evidence presented that the Renters had to stay in a motel at a cost of $955.00 in or near Ocean Grove in order to escape the mould infestation when Ms Blatt's grandmother's house was available free of charge. Therefore, the Renters have failed to mitigate their loss regarding the motel expenses and so this claim is dismissed.
[40]
The Renters' evidence was that they already owned an air purifier that they purchased for $3,425.00 in 2018 but that it cost $1,255.00 to replace the filters which needed to be done after the mould problem arose because the filters smelt very bad. Instead of replacing the filters for a cost of $1,255.00, the Renters decided to buy a new air purifier for $1,120.00 because its replacement filters were less expensive and this would reduce the likelihood of there being any cross-contamination regarding the mould and so the Renters sought the amount of $1,120.00 as compensation from the Rental Provider.
On the evidence presented, I consider this claim by the Renters to be misconceived because the Rental Provider cannot be held liable for the loss they are claiming. The Renters could have claimed against the Rental Provider for the increased cost related to having to change the filters in the original air purifier more often as a result of the mould problem but there was no evidence about what the amount of that claim would be even if the Renters did make such a claim which they did not. Additionally, there was no evidence that the Renters had to purchase a new air purifier as a result of the mould issue only that they wanted to in order to avoid potential cross-contamination, about the risk of which there was no evidence presented.
On the evidence presented, I find that the Renters simply chose to purchase a new air purifier when it was not necessary to do so as a result of the Rental Provider's contravention of section 68(1)(a) and (b) of the Act and so the Renters have not suffered any loss caused by the Rental Provider in relation to the purchase of the new air purifier.
I also note that the purchase transaction in relation to the new air purifier took place on 14 December 2021 which was 5 days before the rental agreement ended and that the purchase was in $USD meaning, if the air purifier was being sent from the USA, it would not have arrived by the end of the rental agreement and, even if it wasn't, it still may not have arrived by the end of the rental agreement. This supports my finding that the Renters have not suffered any loss in relation to the purchase of the new air purifier that the Rental Provider can be held liable for as, in my view, the Renters have just purchased the air purifier for their own ongoing use. Therefore, the Renters' claim in relation to the air purifier is dismissed.
[41]
The Renters claimed $2,633.00 as compensation from Rental Provider for moving costs as a result of having to vacate the rented premises on 19 December 2021 because the Rental Provider failed or refused to comply with VCAT's order dated 30 September 2021 to remove all the mould at the rented premises. The Renters' argument was that, had the Rental Provider complied with the VCAT order, the Renters would not have had to vacate the rented premises earlier than the end of the 12 month rental agreement which was due to end on 5 February 2022 and the rental agreement could have been renewed for at least a further 12 months, which the Renters had requested prior to vacating the rented premises, or otherwise the rental agreement would have rolled over into a periodic tenancy.
The Renters also dispute that the notice to vacate given to them by the Rental provider on 1 November 2021 was valid for a number of reasons including that it asked them to vacate the rented premises on or before 31 January 2022 due to the end of the fixed term, which was before the fixed term rental agreement was actually due to end on 5 February 2022.
I accept the Renters' evidence regarding the amount of the moving costs which was unchallenged by the Rental Provider, and I accept the Renters' submission that the notice to vacate was not valid because it purported to terminate the rental agreement due its fixed term ending 5 days before the actual end date of the fixed term rental agreement. Therefore, the notice to vacate was invalid and of no effect because section 91ZZD(2) of the Act provides that:
[42]
[t]he notice must specify a termination date that is on or after the date of the end of the initial fixed term.
[43]
Nevertheless, I am not satisfied, on the evidence presented, that the Renters' moving costs were anything other than actual moving costs that the Renters would have had to incur anyway at some point in the near future albeit having been brought forward as a result of the Rental Provider's failure or refusal to comply with VCAT's order dated 30 September 2021.
This is because, even though I am satisfied that the notice to vacate was invalid and of no effect and that the Renters were seeking a further 12 month rental agreement (which was not agreed to by the Rental provider), the Renters' assertion, implied by way of making the claim for the moving costs, that they would have stayed in possession of the rented premises much longer than the end of the fixed term of the rental agreement if the Rental Provider had complied with VCAT's order dated 30 September 2021 is speculative and not supported by any evidence.
Given that the Renters vacated the rented premises approximately 7 weeks prior to the end of the initial 12 month fixed term rental agreement, that the Rental Provider was not agreeable to offering a further 12 month rental agreement and that the relationship between the Renters and the Rental Provider's agents had, on my assessment if the evidence, clearly broken down, even if the Rental Provider had complied with VCAT's order dated 30 September 2021, I find it more likely than not that the Renters would have vacated the rented premises, ether under their own volition or at the initiative of the Rental Provider, at some point in what was then the near future.
As a result, I am satisfied that the moving costs incurred by the Renters were just costs brought forward in time and so the Rental Provider cannot be held liable for the moving costs as the Renters would have had to pay the moving costs anyway regardless of whether the Rental Provider complied with VCAT's order dated 30 September 2021 or not. On this basis, the Renters' claim for the moving costs is dismissed.
[44]
The Renters also claimed $1,000.00 from the Rental Provider as compensation for the hardship and inconvenience they suffered as a result of the Rental Provider's contravention of the Act and failure or refusal to comply with VCAT's order dated 30 September 2021.
I am satisfied that the Tribunal's power to award compensation under sections 452 and 472 of the Act is not restricted to pecuniary loss meaning that the Tribunal may order payment of a sum that compensates the Renters for inconvenience caused to them by the Rental Provider's contravention of section 68(1)(a) and (b) of the Act and failure or refusal to comply with VCAT's order dated 30 September 2021.[4]
On the evidence presented by the Renters, which was not challenged by the Rental Provider, I accept that the Renters were, for medical reasons, forced to vacate the rented premises before the end of the fixed term rental agreement as a result of the Rental Provider's contravention of section 68(1)(a) and (b) of the Act and failure or refusal to comply with VCAT's order dated 30 September 2021 which required the Rental Provider to remove all of the mould at the rented premises. I am also satisfied that this caused significant inconvenience to the Renters.
I am also satisfied that, due to Rental Provider's contravention of section 68(1)(a) and (b) of the Act and failure or refusal to comply with VCAT's order dated 30 September 2021, the Renters suffered significant inconvenience due to having to sleep outside in a tent partially during winter and stay temporarily at Ms Blatt's grandmother's house on several occasions in order to escape the mould infestation at the rented premises.
As a result, I am satisfied that the Renters suffered significant inconvenience due to the Rental Provider's contravention of section 68(1)(a) and (b) of the Act and subsequent failure or refusal to comply with VCAT's order dated 30 September 2021 which required the Rental Provider to remove all of the mould at the rented premises by 11 November 2021.
[45]
[1] See, for example - Australasian Temperance and General Mutual Life Assurance Society Ltd v Howe[1922] HCA 50; (1922) 31 CLR 290; Crouch v Commissioner for Railways (Queensland)(1985) 159 CLR 22; and Director of Housing v Currie (Residential Tenancies) [2021] VCAT 1368.
[46]
[2]Section 88 of the Act relevantly provides: "A notice requiring entry must - (a) be in writing; and(b) state why the residential rental provider or that person's agent wishes to enter ..."
[4] See, for example: Reardon v Ministry of Housing (unreported, Supreme Court of Victoria, 13 November 1992 per Smith J).
Parties
Applicant/Plaintiff:
Blatt
Respondent/Defendant:
Black Dog Ashgrove
Legislation Cited (3)
Tenancies Act 1997
Civil and Administrative Tribunal Act 1998
Tenancies Regulations 2021
Cases Cited (2)
(1922) 31 CLR 290
(1985) 159 CLR 22
AI Analysis
Outcomeplaintiff
Disposition:
Respondent Black Dog Ashgrove P/L ordered to pay applicants $3,195.40 compensation; principal registrar directed to correct Tribunal register to state claim under sections 452 and 472 of the Residential Tenancies Act 1997 (Vic).
Therefore, I was satisfied that the Rental Provider did not have any grounds to seek to reagitate the Tribunal's findings of fact made on 30 September 2021 and so I proceeded to hear the evidence from the Renters and the Rental Provider regarding the Renters' compensation claim.
On 8 September 2021, the Rental Provider emailed the Renters confirming that the Rental Provider understands that the Renters do not find Mr Valena's plan to deal with the mould issue satisfactory and that the Renters sent him away after Mr Valena spent an hour travelling to the rented premises which the Rental Provider did not consider acceptable and confirmed that Mr Valena was asked to attend the rented premises to clean the mould and not to cut out or remove mould from the walls as this was not evident from the photos.
On 9 September 2021, the Renters received a breach of duty notice from the Rental Provider for not allowing Mr Valena entry to the rented premises.
The Renters engaged Dr Cameron L Jones PhD of Biological Health Services to undertake a mould assessment and report and, after he attended the rented premises on 9 September 2021, the Renters received Dr Jones' mould assessment report ('the Report') on 19 September 2021. The Report was also forwarded to the Rental Provider on this date.
On 23 September 2021, the Rental Provider informed the Renters that the Mould Doctor would be engaged to assess the mould issue and to quote for works and, on 28 September 2021, the Rental Provider informed the Renters that this will take place on 25 October 2021.
On 30 September 2021, the VCAT urgent repairs hearing took place and the orders set out above at paragraph 1 were made by the Tribunal.
On 1 October 2021, the Mould Doctor attended the rented premises to quote for the mould treatment and informed the Renters that the proposed treatment was to spray the mould with chemicals and to fog the whole house with other chemicals. Nothing was said about removing the water damaged the drywall or the mould that was also found to be present in the ceiling cavity according to the Report.
The Renters offered the Rental Provider to pay for a third of the cost of the removal of the mould and the water damaged dry wall on the basis that the Renters choose their preferred remediation specialist to do the works and, on 8 October 2021, the Renters followed up this offer with the Rental Provider and explained that they would like the mould actually removed rather than just being sprayed.
On 12 October 2021, the Rental Provider informed the Renters that the Rental Provider intends to use the Mould Doctor to spray and fog the entire house which was to take place on 11 November 2021. The Renters opposed this plan on the basis that it is not compliant with the VCAT order dated 30 September 2023 which states that all mould at the rented premises must be 'removed', nor does it follow the recommendations in the Report.
On 13 October 2021, the Renters made an increased offer to pay the entire cost of remediating the mould at the rented premises using their choice of mould remediation specialist less the cost quoted by the Mould Doctor for the spraying and fogging being $670.00. This offer was refused by the Rental Provider.
On 15 October 2021, the Renters contacted the Mould Doctor with their concerns regarding the planned spraying and fogging of the house at rented premises.
On 17 October 2021, the Mould Doctor responded to the Renters' concerns which the Renters did not find acceptable. The Mould Doctor responded that the Rental Provider had not requested a demolition remediation by removing walls therefore it's recommended that another trade be engaged as we, the Mould Doctor, have withdrawn our services.
Although the Mould Doctor had informed the Renters that it had withdrawn its services, it did not inform the Rental Provider of this decision and so further attempts by the Mould Doctor to attend the rented premises took place.
On 19 October 2021, one of the Renters advised that she had COVID-19 symptoms so the Mould Doctor's attendance at the rented premises to undertake the works was rescheduled.
On 25 October 2021, the Mould Doctor was scheduled to attend the rented premises to undertake the works but was not allowed access by the Renters and the attendance was further rescheduled to 5 November 2021.
On 1 November 2021, the Rental Provider gave the Renters a notice to vacate the rented premises due the fixed term of the rental agreement ending. The Renters disputed the validity of the notice to vacate.
On 2 November 2021, the Renters offered to pay for the entire cost of the mould remediation works on the basis that the Renters choose the mould remediation specialist to do the works and requested to stay on at the rented premises after the end of the current rental agreement. This offer was refused by the Rental Provider because the Rental Provider preferred to use its own trades. Nothing was said by the Rental Provider about extending the rental agreement beyond its 12 month fixed term.
By agreement with the Rental Provider, the Renters vacated the rented premises and returned the keys to the rented premises to the Rental Provider on 19 December 2021.
It was not disputed by the Rental Provider that one of the Renters, Linda Blatt, is particularly sensitive to mould and has a number of medical conditions that would or could be exacerbated by the presence of mould at the rented premises and by potential mould treatment options put forward by the Rental Provider which, at worst, could be life threatening.
The Renters' medical evidence from Ms Blatt's functional medical doctor, Dr Tania Ash, contained in an email from her to the Rental Provider on 1 November 2021 was that Ms Blatt was being treated for mould exposure and is prone to anaphylaxis and that, due to this, the Mould Doctor's planned fogging method of mould treatment would be potentially extremely hazardous to Ms Blatt's health.
The Rental Provider's evidence took the form of submissions as set out above under the heading Rental Provider's Position.
Mr Benson-Bunch was given the opportunity to cross-examine Mr Aarryn Cooper and Ms Geraldine Hookem who represented the Rental Provider at hearing. Under cross-examination, the Rental Provider accepted that the planned works by the Mould Doctor didn't include removal of the drywall, maintained that the Mould Doctor withdrew its services because of the Renters' requirement that the drywall be removed and referred to voice recordings filed with VCAT and provided to the Renters prior to the hearing that the Rental Provider says proves that Ms Blatt refused the Mould Doctor entry to the rented premises.
As a result, I am satisfied on the evidence presented that the Renters did refuse and delay the Rental Provider's tradespeople access to the rented premises to attempt to remediate the mould issue and that the Mould Doctor withdrew its services because of the Renters' requirement that the drywall be removed which the Mould Doctor was not authorised to do by the Rental Provider.
However, in the circumstances, the Renters' refusal of entry to the Rental Provider's tradespeople was subsequently justified because, based on the Report which I accept is accurate evidence of the mould remediation works required for the Rental Provider to comply with section 68(1)(a) and (b) of the Act, the Rental Provider's planned mould remediation works would not have solved the mould issue and would not have been compliant with VCAT's order dated 30 September 2021, which I accept ordered the Rental Provider to actually 'remove' all mould at the rented premises.
I also note that the Rental Provider did not give the Renters any notices of entry under section 88 of the Act and so, absent the Renters' consent to entry of the rented premises by the Rental Provider's tradespeople, the Rental Provider's tradespeople had no right to enter the Rented Premises.[2]
The Rental Provider could have argued that it was not properly on notice that its planned remediation works would not solve the mould issue until, at the earliest, when it received a copy of the Report on 9 September 2021 or, at the latest, by way of the VCAT order dated 30 September 2021.
Nevertheless, given that I have accepted the evidence of Dr Jones that the Rental Provider's planned mould remediation works would not have solved the mould problem, even if Mr Valena or the Mould Doctor had carried out their planned works, there would still be mould present at the rented premises and the Rental Provider would still be in breach of its duties under section 68(1)(a) and (b) of the Act and would have still failed to comply with the Tribunal's order dated 30 September 2021.
For the avoidance of doubt, in relation to the VCAT order dated 30 September 2021, I accept the Renters' submission that the order means the Rental Provider, via its suitably qualified tradespeople, must actually 'remove' all of the mould at the rented premises including the affected areas such as the drywall and in the ceiling cavity rather than just treating the mould and fogging the house at the rented premises.
I also accept the unchallenged evidence of Dr Jones that fogging doesn't remove mould.
As a result, although renters do not have the right to dictate what remediation works a residential rental provider must undertake to comply with section 68(1)(a) and (b) of the Act, the Renters in this particular situation do have the right to insist that any planned mould remediation works will have the effect of complying with section 68(1)(a) and (b) of the Act and the Tribunal's order dated 30 September 2021, which I have found the Rental Provider's planned mould remediation works would not.
This leads me to the finding that the Rental Provider didn't do, or attempt to do, all that it could have reasonably done within a reasonable period of time to deal with the mould issue, such as actually remove the mould. As a result, the Renters shall be entitled to an order for compensation from the Rental Provider due to the Rental Provider's contravention of 68(1)(a) and (b) of the Act because, due to the ongoing presence of mould at the rented premises, the Rental Provider has failed to maintain the rented premises in good repair and in a reasonably fit and suitable condition for occupation.
As to the Renters claim under section 65A of the Act, as the 12 month fixed term rental agreement started before 29 March 2021 and ended before it rolled over into a periodic agreement, section 65A of the Act does not apply to the rental agreement and so this claim is dismissed.
As to the Renters' claim under section 67 of the Act, I consider that below.
The Renters also allege that the Rental Provider arranged an open for inspection while the Renters were still in occupation of the rented premises, failed to fix a window that would not fully close which was ultimately not fixed properly and gave the Renters a wrongful breach of duty notice.
No evidence was provided by the Renters as to if and when the open for inspection took place, if the Renters consented or not to the open for inspection, or if a notice of entry was given in relation to the open for inspection which is provided for under section 86(1)(b)(2) of the Act. As a result, I find the allegation that the proposed or actual open for inspection contravened section 67 of the Act not proven.
As to the allegedly faulty window, I do not accept that the Rental Provider's failure to repair the window to be a contravention of section 67 of the Act but rather a potential contravention of section 68 of the Act. Nevertheless, the Renters did not provide any evidence of the window being faulty apart from stating in their submissions that it was, or of the date they notified the Rental Provider of the faulty window, or how any compensation sought in relation to the faulty window was calculated nor did the Renters seek any specific amount of compensation in relation to the faulty window. As a result, I find the Renters' claim under section 68(1)(a) and (b) of the Act in relation to the allegedly faulty window not proven.
As to the breach of duty notice given by the Rental Provider to the Renters on 9 September 2021, whilst I accept the Renters' submission that the Rental Provider had no grounds for giving them the breach of duty notice for not allowing Mr Valena entry to the rented premises on 8 September 2021 because they had not been given any notice of entry under the Act and were entitled to withhold consent to entry of the rented premises, I do not accept that the wrongful breach of duty notice amounts to contravention of section 67 of the Act.
This is because I am not satisfied that the breach of duty notice, in and of itself, amounts to a disruption of the Renters' ability to live in peace and quiet at the rented premises. As a result, I find the Renters' claim that the wrongful breach of duty notice contravened section 67 of the Act not proven.
This equates to 109 days at 25% of $62.86 per day being $1,712.93 which I will order as compensation for the Rental Provider's contravention of section 68(1)(a) and (b) of the Act.
Had the Rental Provider complied with VCAT's order to 'remove' the mould at the rented premises, then the inconvenience suffered by the Renters would have been greatly reduced, but instead the Renters had to continue to sleep outside in a tent every night, unless staying at Ms Blatt's grandmother's house or in a motel, and had to vacate the rented premises before the end of the fixed term rental agreement. In the circumstances, I am satisfied that an award of $1,000.00 as compensation for the significant inconvenience caused to the Renters by the Rental Provider's ongoing contravention of section 68(1)(a) and (b) of the Act is appropriate.