Hughes v De Silva; De Silva v Hughes

The Principal Claims

1. The Tenant occupied the premises for only a short period of time. She claims she suffered significant respiratory problems as a result of the poor state of cleanliness, including particularly the presence of mould. She sought the assistance of the managing agents and also undertook her own cleaning and paid for some work. On medical advice, she decided she could not return to the premises, and sought to terminate her tenancy. Mr Hunt did attend to discuss her concerns, and also arranged for the cleaner who did the pre-tenancy clean to return to do further cleaning. The Tenant states she would have been prepared to stay if the mould could have been properly removed and some other issues attended to. However, she got sicker quickly and was admitted to Intensive Care at Campbelltown Hospital on 23 February 2019. She remained in hospital until 28 February. She moved into a hotel after that as she had nowhere else safe to stay. She had only been in the premises from 14 February 2019 to 23 February 2019.
2. The Tenant seeks a rent abatement for the full amount of rent paid due to the reduction and withdrawal of services. She also seeks compensation of $2,000 due to the Landlord's breach of its obligation not to cause of permit any interference with the reasonable peace, comfort or privacy of the tenant (S 50 of the Act). She also seeks reimbursement of $500 being the total of the amounts she paid for gardening, tile and grout cleaning and pest control. Finally, she seeks return of the $1,600 bond.
3. The Landlord claims to have been totally unaware of any medical issues for the Tenant that would have made these premises unsuitable or uninhabitable. The Landlord denies many of the Tenant's claims regarding the condition of the premises.
4. The Landlord's general response is that the premises were fit for habitation, and in a state of reasonable cleanliness at the start of the tenancy, and that the managing agents took all reasonable steps to address the concerns of the Tenant. Ms Calderbank and Mr Hunt indicate that they were unaware of the Tenant's particular medical conditions which may have made the premises unacceptable to her. For this reason, the Landlord denies that there was any breach of the Act or the RTA which entitled the Tenant to leave during the course of the fixed term without penalty. The Landlord believes the break fee should apply.
5. The following issues arise from this summary: 1. Did the Landlord comply with its obligation to provide the residential premises in a reasonable state of cleanliness and fit for habitation by the tenant? (Section 52 of the Act, clause 18.1) 2. If not, is the tenant entitled to a full refund of all moneys paid pursuant to Section 44 of the Act, plus further compensation under Section 187? 3. If the Landlord did comply with its obligation under S 52 of the Act, is she entitled to the amounts claimed for the break fee?
6. In relation to the other issues, I note that the Tenant seeks a refund of all rent and bond monies. This is only possible if the Landlord was in breach of the RTA and/or the Act at the time the tenancy commenced. My consideration therefore necessarily focusses on the condition in which the premises were presented to the Tenant.
7. The Tenant's submissions indicate that the Tenant was entitled to compensation, and to terminate her tenancy due to a breach of Section 63 of the Act which requires the Landlord to provide and maintain the premises in a reasonable state of repair, however her evidence is more suggestive of a breach of Section 52, and I intend to consider her claim on that basis. This is because she returned regularly in her evidence to the significant health effects caused to her by the state in which the premises were handed over to her. This is a habitation or cleanliness (or both) issue, rather than a failure to undertake necessary repairs. There is in fact in her evidence very little about the state of repair of the property. The focus in her evidence is on the state of cleanliness.

Did the Landlord comply with its obligation to provide the residential premises in a reasonable state of cleanliness and fit for habitation by the tenant? (Section 52 of the Act, clause 18.1)

1. The Tenant relies on: 1. Her chronology, 2. Her comments on the Ingoing Condition Report (ICR), 3. A brief report by Dr Sanjay Chavali, Respiratory Medicine Registrar, Camden and Campbelltown Hospitals, dated 1 March 2019 4. Email from Brad Haines, social worker, Camden and Campbelltown Hospitals, dated 26 February 2019 5. Discharge referral from Camden and Campbelltown Hospitals dated 27 February 2019, series of text messages and emails between her and the managing agents 6. Letter from Ms Karyn Horsley, Senior Health Counsellor, South West Sydney Local health District, dated 17 April 2019 7. Her photographs of the premises 8. Invoices paid by her for lawn maintenance, cleaning and pest control 9. Her Statutory declaration of 30 April 2019 10. A further Statutory Declaration by the Tenant dated 30 April 2019 in response to statement of Mr Hunt. 11. Statutory declaration of Ms Margaret Lepke dated 30 April 2019 12. Letter from Ms Margaret Lepke dated 16 April 2019 13. Statutory declaration of Ms Leanne Day dated 30 April 2019 14. Letter from Ms Betty Guy dated 16 April 2019 15. Her comments on the Building Report submitted by the Respondent.
2. Relevant to the issues to be determined in these proceedings, the Tenant claims: 1. She first saw the property on 8 January 2019 through a previous managing agent, but did not complete a tenancy application as "there was too much work to do" 2. On 27 January 2019 she became aware through Mr Hunt that the property was still available for rent. She inspected it, and submitted an application on 29 January 2019. 3. After some negotiation, Ms Calderbank indicated on 30 January 2019 that the owner would agree to $400 per week. Ms Calderbank stated that a cleaner would attend before she moved in. Ms Hughes stated she would not take it unless it was really clean, that the grass is cut, that the overrun trees are trimmed down and the grass in the garden is taken out … she reassure me … I reluctantly said yes because I thought Peter would not let me live in a dump 1. On 5 February 2019, Ms Calderbank sent a text message indicating the cleaning, lawns and locks were being done. This was inaccurate as she later discovered - the lawns had not been done. 2. She attended the property on 8 February 2019 on the way to signing the lease. The grass was long. She mentioned this to Ms Calderbank who said the grass would be done within the week before she moved in. Ms Calderbank also stated the cleaners "had scrubbed the place". The ICR stated "clean and tidy" everywhere. She signed the lease on these assurances. The description of the premises on the ICR was misleading and deceptive 3. She arrived at the house 45 minutes after signing the RTA. The house was not clean and tidy. The garage was particularly unclean, and the grass was very long. She rang Ms Calderbank back. She stated she did not want to accept the property, but Ms Calderbank stated it was too late. 4. The following day - Saturday 9 February - she contacted Ms Lepke who arrived at the premises and assisted her to complete her part of the ICR. Both of them were disgusted at the state of the premises. Mr Hunt came to the premises later that afternoon. He repeated that the cleaner Helen had stated she had scrubbed the floors. She told Mr Hunt that she has a mould allergy. She was not sure if she had mentioned this before signing the lease. There were spiders in almost every corner. The oven was unclean, the door was broken, there was mould in the blue room wardrobe, and the skirting board was filthy. The window tracks and widows were also filthy. The bathroom was filled with mould, and there was dirt like mud in the grout. The kitchen tile grout was also filthy. Mr Hunt stated he would get the same cleaner to re-attend, but he doubted if the owner would agree to spend the money to regrout the tiles. She agreed with Mr Hunt that she would stay if the cleaner came back to clean the skirting, oven, cupboard, window tracks, garage, remove the cobwebs, clean the air conditioning, and clean the kitchen and bathroom tiles. 5. The cleaner Ms Helen Jabbour attended on 13 February 2019. She showed her everything that needed to be done, as discussed with Mr Hunt. However, Ms Jabbour did not do everything. In particular, she did not do the window runners, the air conditioner, the lawns, inside the blue room wardrobe, the oven, the garage, the bathroom or kitchen tiles or skirting boards. Ms Hughes denies that she was rude about the agents, or unhappy about everything and everyone as Ms Jabbour alleges. 6. Ms Calderbank told her to get her own tradesman to cut the long grass because their own trades could not attend for at least a week. 7. She had to clean the kitchen and skirting herself and the outside of the windows. She also had to employ her own cleaners to do the floors. Her cleaner said he could not do the bathroom wall tiles and the floor and tiles in the shower because "they would not withstand it". He suggested she use vinegar for the mould in the bathroom, but this did not work. 8. She moved in on 15 February, and was taking antihistamines and ventolin by the following day. She paid for a pest exterminator on the following day. She had continued to contact Ms Calderbank in the meantime but had no response. On 16 February 2019, she emailed Ms Calderbank about missing flyscreens and mosquitos and wasps entering the house. She also informed Ms Calderbank of an active leak under the bathroom sink. There was no response. On 17 February 2019she got her own pest exterminator to spray due to the number of cockroaches. On 20 February, she emailed Ms Calderbank about the extensive mould - including in the skirting, cupboard, under the bathroom sink and in the kitchen under the sink. There was no response. On 21 February 2019, her lawn mowing man attended. On 22 February 2019, she sent Ms Calderbank pictures of the mould. The agency mentioned for the first time that she may need to pay a break fee if she vacated 9. On 23 February, she went to her GP due to breathing difficulties, and she was admitted to Campbelltown Hospital - she went into the resuscitation area and then ICU and spent 5 days in hospital. When she was discharged, she did not return to the premises on the recommendation of the medical team. She booked into a hotel. She had no fixed place of abode between 23 February 2019 and 26 April 2019. 10. Following the orders of the Tribunal on 7 March 2019, she returned to the premises to pack up on 10 March. She wore a mask but again had an episode of asthma. She had been well since leaving hospital
3. The Tenant's comments on the ICR accord with the description she provides above. I accept that these comments were provided to Mr Hunt on 9 February 2019.
4. Ms Lepke confirms in her Statutory Declaration and statement that she attended the Tenant's premises at her request on the morning of 9 February 2019. Her comments are largely, although not entirely consistent with the evidence given by the Tenant. Details are provided below where relevant. She also relevantly states as follows: 1. Prior to signing the RTA, Ms Hughes had mentioned repeatedly that she had emphasised to Ms Calderbank that she would only sign the RTA if the property had been thoroughly cleaned. 2. Ms Hughes phoned her on 9 February 2019 to indicate that the premises were unacceptably dirty. 3. When she attended the premises, she was appalled at the state of the house. Only a small amount of cleaning had been done. All of the windows were filthy inside and out, as were the curtains. There was plenty of mould in the bathroom, the shower door had no bottom runner … and there were many other items not included in the ICR … the … garage was in an even worse condition … the whole interior of the garage was in an appalling state 1. She later took the call from Mr Hunt, and confirmed that the premises were unacceptably dirty. Mr Hunt denied this, but finally agreed to attend the premises later that day. 2. She believes: The house at that stage could not have been called clean by anyone's standard … Ms Hughes did not exaggerate the state of [the premises] when she entered it on 9 February because I arrived shortly after to witness this 1. She did assist Ms Hughes to complete her part of the ICR (to correct the inaccuracies in the part completed by the managing agents). They also attached a separate "rental maintenance list". In particular, they corrected Mr Hunt's claim that there was no mould at the premises
5. Ms Leanne Day states that she visited Ms Hughes in her home on 18 February 2019 while she was still unpacking. She makes the following comments: I … saw mould in the bathroom that could not be regrouted by the contractor Annie paid to clean. I also saw mould in the second bedroom wardrobe in the corner above my head … I have been employed as a cleaner for 4 years … this would not be acceptable or to my standard of clean … there were no insect screens on the windows so there could only be a small amount open for ventilation, allowing access for all bugs and critters to come in …
6. Ms Betty Guy writes that she helped Ms Hughes move into the premises. While putting things in the bedroom, she noticed the corner of the window still had cobwebs and dirt, and the windows of the room outside were extremely dirty.
7. Dr Chavali confirms that Ms Hughes was admitted to Campbelltown Hospital on 23 February 2019 with an acute exacerbation of asthma with severe respiratory distress. He provides the following opinion: … the precipitant of this exacerbation was the mould present at the new rental property for which she has recently signed a lease … She has been reviewed by the respiratory team and social work team here at Campbelltown Hospital extensively. She also has immunology follow-up as an outpatient to continue investigating her allergic asthma …"
8. Mr Brad Haines confirms that Ms Hughes had reported that she had noticed extensive mould and general uncleanliness when she first inspected the premises prior to signing the lease. She also reported having told the agents that she would not sign the lease unless this was addressed. She signed the lease on the promise these matters had been attended to, however none of the issues had been rectified. She also indicated that the second clean did not remove the entrenched mould in the property. He concludes: Ms Hughes has shown the medical team photos of the mould and the medical recommendation is that Ms Hughes cannot return to the property due to concerns for exacerbating lung condition. Please note Ms Hughes required an admission to ICU due to [this condition]
9. The Discharge Referral confirms that Z was admitted to hospital on 23 February 2019 and discharged on 27 February 2019. Her presenting problem was shortness of breath and the diagnosis was the acute exacerbation of asthma.
10. The letter from Ms Horsley refers to the counselling the Tenant has been receiving for her emotional wellbeing. She had been progressing well, but her emotional and physical wellbeing had deteriorated rapidly after her hospital admission due to her asthma attack after being exposed to mould.
11. The Tenant took me through her photos during her evidence. She suggests they show:

• Mould on the corner of the shower and bathroom tiles and in the silicone and grout and on the bottom of the basin inside the cupboard
• Long grass and weeds in the garden
• The leak under the bathroom sink
• Mould in the timber surrounds of the bathroom window
• Dirty kitchen floor tiles, including mould in the grout
• Dirty oven including baked in dirt, and food residue on the griller
• Dirt/mould on the kitchen tiles
• Mould in the bedroom cupboard and on the bedroom skirting boards
• Very dirty air conditioner
• Mud outside the sliding door
• Mould on the bottom of the curtains
• Garage ceiling covered in dusty webs, floors full of thick dust and dead caterpillars
• Dirty windows

1. Ms Hughes states that there was a direct correlation between the exacerbation of her breathing difficulties and her move into the premises. She had been reasonably well before that, and had not required any asthma medication. Her respiratory problems tend to become worse when there are allergens. This causes her airways to clog. She had been well for 5 years until she moved into the premises.
2. The Landlord relies on the following documents: 1. The ICR and associated photos taken in preparation for renting the premises 2. Cleaning, Locksmith and Pest Control Invoices paid by the Landlord just prior to the Tenancy 3. Report of the cleaner Ms Jabbour dated 19 March 2019 4. Letter from Ms Calderbank to the Tenant dated 26 February 2019, and subsequent email correspondence between the parties 5. Building Inspection Report dated 20 September 2018 prepared by Ranji Premaratne 6. Set of Advertising Photos 7. Before and After photos taken by the cleaner 8. 5-page Statement of Facts written by Mr Peter Hunt
3. Mr Hunt and Ms Calderbank gave the following material evidence on behalf of the Landlord: 1. When Ms Hughes first approached Mr Hunt on 27 February 2019, to find out if there were any suitable properties for lease, she stated she was on her own and had a small dog. They discussed where she wanted to live and her budget. 2. Mr Hunt told the Tenant about the premises which had not yet been advertised. She stated she already knew this property as it had been shown to her by the previous managing agents. He stated she would need to inspect the property again with one of the new agents, if she remained interested. Ms Hughes made these arrangements with Ms Calderbank. 3. After the inspection, Ms Hughes decided to apply for the property on the condition that a professional clearer would attend prior to her moving in. The Landlord agreed. 4. The cleaner did attend, and on 8 February 2019, Ms Hughes signed the RTA 5. Mr Hunt did attend the premises on 9 February 2019 after the phone call from Ms Hughes. He was there for 90- minutes discussing the issues. He noticed some surface dust ion the floor which had come in from outside due to the absence of fly-screens. 6. Ms Hughes stated that "the property suffered from mould". She showed Mr Hunt 2 locations - the corner of the shower cubicle and where the silicone joints the kitchen benchtop to the tiles. Mr Hunt took photos of these areas. Mr Hunt suggested that the old silicone could be removed and replaced with new. Ms Hughes stated that was not necessary as a cleaning product was likely to work. 7. Mr Hunt also noticed dust marks on the skirting board, some spiders, 2 windows with dirty tracks and a small pile of dirt behind the bathroom door. He showed NMs Hughes the before and after photos taken by the cleaner. 8. Ms Hughes provided Mr Hunt with a document titled Rental Maintenance" (and the address of the premises). 9. They came to an agreement about the items that needed to be further cleaned. Ms Hughes stated she would be satisfied if these issues were attended to. The list included: 1. Ms Hughes to remove and store the curtains and hang her own curtains 2. The cleaner to re-attend to bleach and scrub the silicone in the shower and in the kitchen and under the bottom row of tiles using the cleaning product Ms Hughes had specified. There was no agreement to regrout the tiles. 3. The cleaner to also clean the skirting boards, garage and window tracks 4. Tradesperson to look at sliding door which was hard to open and close 5. 2 wasp nests to be removed. 1. Mr Hunt and Ms Hughes also spoke about how she could exit the lease. Mr Hunt stated she could pay the break lease fee of 6 weeks' rent, or, subject to the Landlord's agreement, remain in the property paying the rent until a new tenant was found, and pay the releasing costs. Ms Hughes agreed to wait until the further cleaning was done. 2. Before he left, Ms Hughes also showed Mr Hunt the inside back corner recess of the oven which also needed to be cleaned, as there was a small carbon deposit in the corners of the oven. Mr Hunt stated this is usual for older ovens and impossible to remove, and that the oven was otherwise clean. Mr Hunt directed me to the photos attached to the ICR which appear to indicate a reasonably clean oven. Despite this, Mr Hunt agreed to ask the cleaner to also look at this. 3. Ms Hughes also mentioned a number of traumatic life-hurdles, including some pre-existing health issues. This was the first he had been aware of this. 4. Ms Calderbank organised for the wasps to be removed on 12 February 2019 5. The cleaner did return to the property on 13 February 2019, with Ms Hughes in attendance. The cleaner indicated she had already used the cleaning product suggested by Ms Hughes when she attended the first time. During this visit, the cleaner Ms Jabbour called the agents to indicate that Ms Hughes was requesting cleaning of items over and above what they had agreed. 6. One week later, Mr Hunt received a call from the ICU department at Campbelltown Hospital, indicating that Ms Hughes had an adverse reaction to the excessive mould and filthy condition of the property, and she was unable to return to the property. They suggested she be released from the lease. Mr Hunt explained that there is no mould evident at the property. 7. The property was "quite clean" when the Tenant's RTA commenced 8. It was an unrenovated property, but it had "no major issues". There is no mould at the property. The curtains were dirty, not mouldy. The so called mould came off with a brush. The property could do with some cosmetic renovation, but it is completely untrue to say it is full of mould. 9. Mr Hunt concludes: Ms Hughes is exaggerating the condition of the property due to the other pressures she is facing … I do not understand her position that she believes this property, which has been professionally cleaned on more than one occasion is allegedly full of mould and is uninhabitable. Others who have seen the property since have remarked on how clean the property presents for its age. 1. The connection between Z's medical condition and the alleged mould is not clear. Ms Hughes had told them that her asthma may have been brought on by the use of certain cleaning products. There was no mould in the premises. 2. The cleaning invoice supplied by the Tenant (Pure Dry Carpet Cleaning) dated 14 February 2019 in the Pre-Inspection Report section has a mark indicating there are visible stains but no mildew damage 3. Ms Calderbank wrote to Ms Hughes on 26 February 2019 noting her desire to end her tenancy, and explaining her liability to pay rent to the date she vacates, plus the break lease fee equivalent to 6 weeks' rent. Ms Hughes replied seeking to be released without penalty (and have her bond returned) on the basis she give 2 weeks'; notice. She also wrote the day after explaining that she was also seeking 1 week's' free rent from 23 February 2019, return of the 2 weeks' holding deposit, and reimbursement for the costs she incurred for floor cleaning, lawn mowing and pest spraying. 4. Ms Calderbank replied on 28 February 2019 indicating the Landlord was prepared to release the Tenant from the RTA providing she continued to pay rent. However, she would still be liable for the break fee of 6 weeks' rent, or to continue in the premises paying rent until another suitable tenant is found, in which case the break fee would be waived, but she would be liable to pay the Landlord's marketing and lease preparation fee. The Tenant emailed back declining both of these options and indicating she was proceeding with the application to the Tribunal.

Consideration - Scope of the obligation

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 "a reasonable state of cleanliness" and "fit for habitation?

1. Neither of these terms is defined in the Act, but they have 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. If the premises were not fit for habitation, it was according to the tenant because of the presence of extensive mould throughout the premises. This is the effect of the medical evidence which she has provided, particularly from Mr Haines and Dr Chevali. The other issues she has raised - the state of the garden and lawn, the bathroom leak, the state of the oven and the air conditioner - may be relevant to the general state of cleanliness, but cannot in my view be relevant to the question of whether the premises were fit for habitation. Ms Hughes does not suggest that this was so.
3. The question of fit for habitation therefore turns in my view on the question of whether there was mould in the premises, and the extent of that problem. The position of the parties is widely divergent on this issue. The Landlord's position is that there is no mould. Mr Hunt acknowledges Ms Hughes making this claim, and viewing the areas which she claimed to be mould, but he and Ms Calderbank (supported by the cleaner Ms Jabbour) remain of the view that there was no mould when the tenancy commenced. They also refer to a brief comment in the report of the Tenant's own cleaner.
4. In claiming that there was a significant mould, the Tenant relies on her own observations and those of Ms Lepke and Ms Day who attended the premises and made their own observations soon after the tenancy commenced. The Tenant also asks the Tribunal to draw conclusions from the fact of the significant decline in her respiratory function (requiring urgent hospitalisation) soon after she moved into the premises. She relies mainly on the report of Dr Chavali.
5. The evidence about the presence of mould is finely balanced, and requires careful consideration. There has been no independent assessment of the presence of spores at the time the tenancy commenced. The cleaner Ms Jabbour who attended on 2 occasions and who presumably has some experience with cleaning mould is clear that there was none. This is also the view of Mr Hunt who attended the day after the tenancy commenced and who also presumably has some extensive experience in viewing mould in his work as a managing agent and the principal of a real estate agency. Ms Hughes and Ms Lepke and Ms Day rely on their own observations, but do not claim to have any particular expertise in identifying mould, as distinct from say heavy staining or marking due to other causes. Ms Day suggests she has some cleaning experience and may be better able to identify this.
6. Dr Chevali states unequivocally that the exacerbation of Ms Hughes's medical condition was precipitated by the mould present at the property, but also notes that she was being followed-up as an outpatient to undertake further investigations of her allergic asthma. Ms Hughes indicates she was totally unaware, until this occasion, that mould was one of those allergens that might cause her to have an asthma attack. Mr Haines notes that the medical team was shown photos of the mould, but it is difficult to see how the team could draw conclusions from the photos alone as to the presence of mould. I note that there is no conclusive evidence that Ms Hughes's respiratory distress could only have resulted from the presence of mould in the premises.
7. Having considered these matters carefully, I cannot be satisfied on the civil standard of proof that there was mould in the premises at the time the tenancy with Ms Hughes commenced. It is therefore unnecessary to decide whether the fact that this Tenant was so severely affected by mould means that the premises were not provided, objectively, in a state fit for habitation.
8. Nor am I satisfied that there is anything else, either collectively or individually, in the manner in which the premises were presented to this Tenant which makes the premises either not fit for habitation, or not in a reasonable state of cleanliness. What amounts to a reasonable state of cleanliness will of course differ from person to person, and to some extent reflects the rent payable. It is acknowledged that these premises were largely unrenovated, and that they did require a pre-tenancy clean. This did occur, but not to the Tenant's satisfaction. There was some minor further cleaning performed after that time, both by the Landlord's cleaner, by a cleaner employed by the Tenant and by the Tenant herself. Having considered the photographic, written and oral evidence carefully, I am not satisfied that the premises on 8 February 2019 were not in a reasonable state of cleanliness. There was clearly a need for further work on the lawn, and some minor items had been missed, but the preponderance of evidence suggests that the premises were reasonably clean. I am satisfied the
9. For these reasons, I cannot be satisfied that the Landlord has breached his obligation under Section 52 of the Act, and this cannot have formed the basis for termination of the tenancy by the Tenant under Section 103 of the Act. 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, or a claim for rent reduction, based on withdrawal of good, services or facilities, under Section 44 of the Act. I note the Tenant's submissions for compensation also for breach of Section 50 of the Act relating to interference with the reasonable peace, comfort of privacy of the tenant. She claims she has lost her right to quiet enjoyment of the property due to the Landlord's refusal to carry out (repairs) and maintain the property. This claim also cannot succeed. The Tenant was in the property for only 2 weeks. There is no dispute that the Landlord did arrange the further attendance of the cleaner in this period, and also the removal of the wasps. The Tenant was not satisfied with this further work, but, having made the findings indicated above, it cannot be said that the Landlord failed to adequately respond to the concerns raised by the Tenant, such that she has been deprived of the quiet enjoyment of her property.
10. I accept that Ms Hughes genuinely attempted to make the necessary arrangements to enable her to remain living in the premises. This included paying for further cleaning, pest control and lawn maintenance. However, I am not satisfied that the Tenant is entitled to be reimbursed for these costs, as I have found that they were not required to bring the premises to a state of fit for habitation, or to a reasonable state of cleanliness, or that they amounted to urgent repairs which the Tenant is entitled to undertake pursuant to Section 62 of the Act (for which reimbursement can be applied for under Section 65).
11. There being no other basis for the Tenant's claim, I dismiss her application, except in relation to the rental bond, which is dealt with below, following consideration of the Landlord's claim for a break fee.

Landlord's entitlement to break fee

1. The Landlord relies on Clause 41 of the RTA which is an approximation of S 107 of the Residential Tenancies Act 2010 ("the Act"). Clause 41 relevantly provides: Clause 41 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 … (41.1) 6 weeks rent if less than half of the term has expired or 4 weeks rent in any other case. 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 4 or 6 weeks' rent provides some certainty to the parties of the amount payable in these circumstances.
3. Section 107 of the Act provides as follows:
4. 107 Landlord's remedies on abandonment (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 that provides for the payment of a break fee. (3) The compensation payable by a tenant under this section in respect of a fixed term agreement is the amount of the applicable break fee for the tenancy, if the agreement provides for the payment of a break fee. (4) The break fee for a fixed term agreement for a fixed term of not more than 3 years is: (a) an amount equal to 6 weeks rent if less than half of the fixed term had expired when the premises were abandoned, or (b) an amount equal to 4 weeks rent in any other case. (5) The break fee for a fixed term agreement for a fixed term of more than 3 years is the amount set out in subsection (4) or, if an amount is specified in the agreement, the amount specified. An agreement must not specify a break fee exceeding the amount (if any) specified by the regulations. (6) The amount of any money paid by a tenant to a landlord 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. (7) This section does not prevent a landlord from obtaining an occupation fee under Division 2 of Part 6 for goods left on the residential premises.
5. 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 Tenant vacated the premises without a cause allowed by the law, she 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. This includes the alternatives of: (3) Termination by order of Tribunal A residential tenancy agreement terminates if the Tribunal makes an order terminating the agreement under this Act. Or (4) Other legal reasons for termination A residential tenancy agreement terminates if any of the following occurs: … (d) the tenant abandons the residential premises. As the above are alternatives, it is argued that the Tenant cannot be said to have abandoned the premises, triggering the break fee under Section 107, if the tenancy has been brought to an end by order of the Tribunal.
6. The Landlord's representatives suggested that this would work unfairly to the Landlord, as the parties had negotiated the end of the tenancy on the basis that the Landlord's right to the break fee would be preserved. This may be so, but cannot be a basis for denying the effect of the clear words of the legislation. As the tenancy was brought to an end by order of the Tribunal, I cannot find that any prior act of abandonment can found the basis for an order for as break fee pursuant to Section 107.
7. If I wrong in this analysis, I now turn to the question of 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 41 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 41 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.
8. Had I been called upon to do so, I would have exercised my discretion not to award the break fee to the Landlord. I take into account the following factors: 1. The Landlord, through her managing agents, was aware from the day of the tenancy, Ms Hughes's dissatisfaction with the condition of the premises 2. The Landlord was also made aware soon after of the Tenant's belief, based on medical opinion, that the condition of the premises was adversely affecting her health. 3. The Tenant attempted to negotiate her exit from the premises for the above reasons, and was at pains to communicate her concerns. This was based on her genuine beliefs as to the cause of her ill-health. 4. The Tenant never failed to comply with all requirements of her tenancy, including the payment of her rent.
9. In these circumstances, I find that the Landlord might have found a better way to minimise her loss from the Tenant's decision to end her tenancy, and that it would be unduly harsh on the Tenant to impose the 6 week break fee on her.
10. For these reasons, I dismiss the Landlord's claim for a break fee pursuant to Clause 41 of the RTA and Section 107 of the Act.

Orders - Rental Bond

1. I have dismissed both the Tenant's claim for compensation and rent reduction, and the Landlord's claim for compensation based on the Break Fee. As the Landlord has no other claim against the Tenant, I order the rental bond to be returned to her in full.

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I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar 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 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: 06 August 2021