1. The tenancy commenced on 19 July 2011 for a twelve month period.
2. The tenant returned the keys to the agent on 14 January 2012.
3. There is an ingoing condition report signed by both parties.

1. That the respondents breached the duty to maintain under the Residential Tenancies Act, and failed to provide goods and/or services which were fit for the purpose of domestic residence because -
   • The property had a pre-existing mould infection
   • The property was in poor repair and subject to mould developing
   • The mould was dangerous to the health of the tenants
   • The landlord failed to take measures to prevent and eradicate the mould infestation.
   • The damp and mouldy condition of the property resulted in damage to the tenant's health and property to the value of $28,782.00.

1. In relation to a claim for compensation under the Residential Tenancies Act, section 210 applies, and provides-

210 Application to Tribunal for compensation order on other grounds

(1) A party to a tenancy agreement may apply to the Tribunal for an order for payment to the applicant by the other party to the tenancy agreement of compensation for loss or damage suffered by the applicant because -

(a) the other party failed to comply with the tenancy agreement or that party's duties under this Act relating to the tenancy agreement; or ....

211 Matters which may be considered by Tribunal

The Tribunal, in hearing an application under section 209, 210, 210A or 210B, may take into account -

(a) whether or not the person from whom compensation is claimed has taken all reasonable steps to comply with the duties under this Act or under the tenancy agreement or site agreement in respect of which the claim is made; and

(b) in the case of a breach of a tenancy agreement, whether or not the applicant has consented to the failure to comply with the duties in respect of which the claim is made; and

(c) whether or not money has been paid to or recovered by the applicant by way of compensation, including money recovered or entitled to be recovered from the bond; and

(d) whether any reduction or refund of rent or other allowance has been made to the applicant; and

(e) whether or not action has been taken by the applicant to mitigate the loss or damage; and

(g) if a claim is made with respect to damage to property, any action taken by the person from whom compensation is claimed to repair the damage at that person's own expense.

1. In relation to the duty to maintain the relevant section is-

(1) A landlord must ensure that the rented premises are maintained in good repair.

1. In relation to the claim that the premises were not fit for the purpose, the Australian Consumer Law is applicable.

Section 3 of the Australian Consumer Law defines a consumer as a person who acquires goods or services "of a kind ordinarily acquired for personal, domestic or household use or consumption".

The definition provided for acquires in section 2 of the text includes in relation to goods - "lease", and services - "accept".

Section 61 of the Text is the section relied upon by the applicant in this case and provides in effect that services must be reasonably fit for a purpose that a consumer, expressly or by implication, makes known to the supplier.

Services must also be of a nature, quality, state and condition such that they can be expected to achieve a result that the consumer makes known to the supplier.

1. At the time the tenancy commenced the property was aged and worn. There were broken windows in the lounge room, evidence of mould on the roof of the bedroom and laundry and the bathroom walls and ceiling. (Ingoing Condition Report).
2. The property had previously been subject to mould which was contained by the previous tenant through wiping over every couple of months. (Evidence of - Terri Jolley, previous tenant).
3. The landlord conducted the following repairs relating to the claim during the tenancy -
   • 2/08/11 covered broken window with cardboard and cloth tape $23
   • 3/10/12 reglazed window $135
   • 4/10/12 replaced broken roof tiles - $105
   • 12/12/11 repatch ceiling in bedroom 1
   • 30/12/11 cleaning of mould
   • 12/01/12 fixing roof leak at unit 3 $70

(Agent for the landlord - oral evidence and supporting receipts)

1. The applicant served a notice to landlord requiring non urgent repairs on 4 October 2011 in which the repairs to the windows, mould in the second bedroom and roof leaks were reported. (Copy of the Notice submitted.)
2. The landlord served a breach of duty notice on the tenant dated 18 October 2011 for breach of section 63. (Copy of the Notice sighted).
3. The house was subject to pooling under the house from storm water from the road. (Energy Leaks Report - 16/12/11 (ELR))
4. The plumbed storm water drain was not active as the ground was not graded to take advantage of it (ELR).
5. The concrete roof tiles were deteriorated, and in need of maintenance. (ELR)
6. The tiles above bedroom one had been repaired. (ELR)
7. The interior roof space appeared in order without any further signs of water ingress. (ELR)
8. There was no moisture build up in the floor, and floor boards were dry. (ELR)
9. The property was cleaned with a view to removing the mould at the expense of the landlord in mid December 2011.
10. The cleaner, Kathy Moran, cleaned all walls and ceilings with bleach during the absence of the tenant. Photographic evidence of the result shows that the major infestation was removed, although there were remaining "stains" which could in the right conditions regrow.
11. The applicant resided in the property with her children, and for some parts of the tenancy with her partner.
12. The applicant was absent for periods during the tenancy.
13. The applicant did not open windows, as she was concerned to maintain the heat in the property.
14. The applicant used the clothes dryer regularly and for periods in excess of an hour during her tenancy.
15. Some of the applicant's goods show evidence of mould infestation and that damage is likely to have occurred during the tenancy.
16. The applicant had no insurance of her contents.
17. The landlord agreed to the end of the fixed term tenancy without penalty.
18. The property has been relet at the same rental rate.

The Tribunal is satisfied on the basis of the above findings that :

1. The rental property was subject to mould build up, as a consequence of earlier infestation, inadequate ventilation, poor drainage and windows and roof in disrepair.
2. The propensity of the property to develop mould was evident at the commencement of the tenancy.
3. There were extensive areas showing previous mould growth.
4. The broken windows in the lounge room were not fixed for some months. This would have contributed to both the damp and the tendency for the tenant to keep windows and doors closed to retain the heat in the property.
5. The extent of the mould build up was exacerbated by the tenant's use of the property.
6. The landlord attended to roof repairs within a reasonable time.
7. The drainage to the underside of the house has not been rectified, however it does not seem to be a major cause of the damp problem as the floor and subfloor areas are not damp.
8. The landlord breached the duty to maintain the property through the failure to properly deal with the mould infestation prior to the commencement of the tenancy and failing to repair the lounge room windows in a timely manner.
9. As a consequence the tenant has suffered loss.
10. The tenant has provided evidence of the items damaged by mould and their replacement value totalling $20452.00.
11. The tenant also seeks storage costs of $1020 and costs of laundering her goods and anti mould products of $200.00.

The landlord offered for lease a property which showed signs of mould infestation and was in poor repair. The rent was commensurate with the condition of the property. The tenant was aware of this before and at the commencement of the lease. The property, whilst not perfect, was capable of habitation, with additional care and precautions being taken. The property was fit for the purpose.

The landlord breached the duty to maintain. The broken windows and roof were in disrepair and the was a delay in repairing those things contributed to the damage to the tenants property .

Had the tenant taken steps to ensure that the property was ventilated regularly, it is likely that the mould build up would have been more contained, and the damage considerably less. The tenants lifestyle and use of the property had an impact on the extent of the damage to her possessions.

Having regard to the nature of the breach, the attempts by the landlord to rectify the breach, compensation already offered to the tenant, the contribution to the damage by the tenant herself, the value of the claim once depreciation is applied, the loss to the tenant is assessed at $2500.00.

Accordingly The order is that the respondents pay to the applicant the sum of $2500.00 and the parties bear their own costs.