In dealing with the tenant's claim for compensation based on the landlords' breach of her right to quiet enjoyment of the property, the Tribunal said that the correct approach is:

• the test to be applied is an objective one; and
• the breach must be substantial.

Internal review - Residential Tenancy -Landlord obligations at commencement of a tenancy - property condition - landlord obligations during a tenancy - maintenance issues - responsibilities of landlord and tenant concerning mould outbreaks

Internal review - Residential Tenancy - Compensation claim by tenant - landlord's breach - objective test of loss or inconvenience - tenant duty to mitigate - failure by tenant to act - tenant communications about defects

Internal review - Residential tenancy - breach of quiet enjoyment - approach to be applied

Residential Tenancies Act 1995 ss 65, 68, 69, 78, 110, 113, 115

South Australian Civil and Administrative Tribunal Act 2013 s 70

Battersby & Battersby v Thapa & Thapa [2017] SACAT 7

Jones v Bartlett [2000] HCA 56; (2000) 176 ALR 137

JRL v Williams & Williams [2017] SACAT 15

Kingsley & Thorne v Living Choice Woodcroft Pty Ltd [2017] SACAT 16

Pett & Pett v Polgase [2019] SACAT 2

Re AKS [2016] SACAT 19

Rossiter v Hosking & Anor [2021] SACAT 31

South Australian Housing Authority v Ivancic [2020] SACAT 115

Tronnolone v Edwards and Bryan [2016] SACAT 27

Varricchio v Wentzel [2016] SASC 86

1. This is an application for the internal review of an order made by the Tribunal on 10 April 2024 in matters numbered 2022/SH005979[1] and 2022/SH005136[2] (the original Order).
2. In the original Order, the Tribunal dealt with an application by the respondent landlords (Mr and Mrs Phillips) seeking compensation for losses arising at the end of the tenancy for a property at Modbury Heights (the property).
3. The original claim by Mr and Mrs Phillips was for an amount of $5,074.95. In the original Order, the Tribunal awarded Mr and Mrs Phillips compensation of $3,604.95.
4. In the original Order, the Tribunal also dealt with an application by the applicant tenant (Ms Kearns). Ms Kearns' principal claims were for compensation from the landlords for loss and inconvenience arising during the tenancy due to Mr and Mrs Phillips' breach of the obligation under section 68 of the Residential Tenancies Act 1995 (the RTA) and compensation for breach of her right to quiet enjoyment of the property (section 65 RTA).
5. Ms Kearns originally sought compensation of $125,644.15 but upon being advised of the Tribunal's jurisdictional limit under section 24 RTA, Ms Kearns revised her claim to a claim for $40,000. In the original Order, the Tribunal ordered for Mr and Mrs Phillips to pay compensation of $18,702.85 to Ms Kearns.
6. This meant that (after deduction of the compensation payable to them), Mr and Mrs Phillips were required to pay compensation of $15,097.90 to Ms Kearns.
7. Ms Kearns disagrees with the original Order, and she has sought a review.
8. An application for internal review is dealt with under section 70 of the South Australian Civil and Administrative Tribunal Act 2013 (the SACAT Act). Section 70 SACAT Act requires that on review the Tribunal must make the correct or preferable decision taking into account the evidence before the Tribunal at the original hearing, giving appropriate weight to the original Order and taking into account any other evidence the Tribunal considers is relevant and appropriate to take into account as part of the review process. An application for review necessarily includes an application for leave.

1. I conducted a directions hearing on 5 June 2024 and issued directions following the hearing. I conducted the full hearing on 6 August 2024. I adjourned the application after that hearing and I issued directions for further documents and submissions to be lodged.

1. Ms Kearns says that she was denied procedural fairness in the original hearing process because Mr and Mrs Phillips were permitted to be represented by a lawyer.
2. Under section 113 RTA, the Tribunal has power to allow legal representation in certain cases including where the Tribunal is satisfied that without the representation, a party would be unable to present their case (section 113(2)(b) RTA). In this matter, due to the fact that Ms Kearns' original claim for compensation was over $100,000, (subsequently reduced to $40,000), there are court proceedings on foot arising from the dispute between the parties and as Ms Kearns was assisted by an experienced and capable advocate from RentRight SA, I consider that it was reasonable to allow Mr and Mrs Phillips to be represented by a lawyer, and that decision was within the discretion of the Tribunal.

1. Ms Kearns has said that Member Griffin was biased against her[3] - for example, he suggested that she may not have been honest in giving some of her evidence,[4] and he criticised the manner in which she presented her case[5] and that was unfair as she was merely trying to present her case in accordance with the directions he had given.
2. I consider that some of the differences of opinion between Ms Kearns and Member Griffin are issues properly dealt with by considering the weight to be given to certain evidence. However, if the Tribunal is presented with evidence from one party and evidence from another which is completely different, then if the evidence is material to the issues in dispute, the Tribunal must make a choice as to whose evidence is to be preferred and that is appropriate.
3. It is generally accepted that due to the specific requirements of section 70 SACAT Act (in particular, for the Tribunal to make the correct or preferable decision on review), this will address any defects in the original hearing process in relation to issues of procedural fairness.[6]

1. Ms Kearns submitted that she had a "heavy load" to establish her case.[7] In this matter, as with any dispute under the RTA, the Tribunal applied the ordinary civil standard of proof, i.e. the balance of probabilities.[8]

Additional evidence and submissions in the review process

1. In the directions I made on 5 June 2024, I directed for each party to lodge submissions which were not to exceed 10 pages. I also directed that if either party wished to provide further evidence to the Tribunal, then they needed to seek the approval of the Tribunal to do so.
2. Ms Kearns lodged an 80 page written submission with her application for internal review. Ms Kearns then lodged a further 80 page written submission on 12 July 2024. Ms Kearns lodged further submissions after Mr and Mrs Phillips lodged their written submissions.
3. At the review hearing, I asked Ms Kearns why she did not comply with my directions. Ms Kearns said that her health issues made it difficult for her to focus so that she could make submissions which were succinct. She asked for me to accept her submissions. I agreed to do so, but in order to be fair, I allowed Mr and Mrs Phillips a further two weeks to respond to her submissions. I declined to accept any of Ms Kearns' submissions lodged after 12 July 2024.
4. Mr and Mrs Phillips lodged further evidence with their submission which contained communications from neighbours in the street about Ms Kearns. I asked why they wanted this evidence to be accepted in the course of the review and they said it was in response to Ms Kearns' submissions that she was well liked by her neighbours. I do not consider this material is helpful for the review and so I will not allow it.

The amendment of Ms Kearns' claims and the proper interpretation of the RTA

1. As part of her application for internal review, Ms Kearns sought to amend her claims for compensation (to increase her claims). This is not appropriate. The internal review process is not a process by which the Tribunal conducts a fresh hearing. It is a process of review - the primary purpose of which is to consider whether or not the decision under review is the correct or preferable decision. A change to the amount of compensation claimed in original jurisdiction proceedings might be permitted in an internal review if the Tribunal made an error in the original hearing process, but otherwise, the applicant must be required to adhere to their original claims. If a further claim has subsequently emerged, it is likely to be too late for that to be dealt with (and in that case, the original claim may have been lodged prematurely). In any event, Ms Kearns' claim for compensation was already at the jurisdictional limit of $40,000.
2. In this matter, it seems that some confusion arose due to a lack of understanding of the significance of the offences created and penalties imposed by the RTA. A claim cannot be made by a tenant on the basis that an offence may have been committed by the landlord, under the RTA. A tenant's claim for compensation in the Tribunal, is made on the basis of a landlord's breach of their obligations under the RTA or on the basis of a landlord's breach of their obligations under the tenancy agreement. Whether or not any such conduct also constitutes an offence under the RTA is irrelevant to the tenant's claim. Any penalty will be imposed by a court pursuant to a prosecution which has established that an offence had been committed (and therefore a penalty may be imposed). The penalty is not paid to the other party to the tenancy agreement (ie it is not compensation).[9]

1. The following is a summary of the facts which are most relevant to the dispute.
2. The tenancy commenced on 7 April 2015 and was initially for a fixed term. The fixed term expired and subsequently the tenancy became periodic. At the end of the tenancy, rent was $760.00 per fortnight ($380 per week) and a bond of $2,160.00 was lodged.
3. The property has three bedrooms, one bathroom with a separate toilet, a kitchen, laundry, living area and dining room. There is a shed in the back yard.
4. Ms Kearns lived at the property with her son and their two dogs. She has her own photography business, and she worked from home.
5. Mr and Mrs Phillips lived in a property next door. For most of the tenancy, they did not have a property manager to manage the tenancy, and they managed it themselves.
6. During the tenancy and while she was living at the property, Ms Kearns served a number of notices in which she requested repairs to be undertaken by Mr and Mrs Phillips (section 68 notices).
7. Ms Kearns, her son and their dogs began to experience health issues. A friend of Ms Kearns' suggested that the health issues may be related to mould. Ms Kearns arranged for a contractor to investigate.
8. A contractor from an independent specialist (O'Sheas) attended on 3 May 2022 and advised that in his opinion, the health issues being experienced by the family were likely to be caused by mould at the property. Ms Kearns moved out on that day and she informed Mr and Mrs Phillips about the issue on that day (by serving a section 68 notice). O'Sheas provided a report to Ms Kearns about the property on 11 May 2022.
9. Mr and Mrs Phillips notified their insurer of the issue at the property on 4 May 2022. The insurer sent Cowans Restoration to inspect the property on 6 May 2022.
10. On 7 May 2022, Ms Kearns served another section 68 notice about the damp and mould.
11. On 11 May 2022, Mr and Mrs Phillips served a Form 3 notice of termination requiring Ms Kearns to vacate the property on 10 August 2022.
12. On 11 May 2022, a building inspection was conducted at the request of Mr and Mrs Phillips by Jim's Building Inspections.
13. On 12 May 2022 an inspector from Pattersons Builders attempted to attend at the property to conduct an inspection (arranged by Mr and Mrs Phillips' insurer), but was unable to gain access.
14. On 13 May 2022, with the consent of Mr and Mrs Phillips, Ms Kearns arranged for a building biologist (Rick Hopton) to attend at the property to take samples for testing. Mr Hopton provided his report to Ms Kearns on 8 June 2022.
15. On 16 May 2022 Ms Kearns lodged an application with SACAT seeking various orders (this is matter number 2022/SH003191 - I will call this the repairs application).
16. On 19 May 2022 Flynn Builders attended to conduct an inspection, at the request of Mr and Mrs Phillips' insurer. They requested a plumber to attend - on 26 May 2022 True Blue Plumbing attended at the property
17. On 22 May 2022 Ms Kearns requested for Mr and Mrs Phillips to pay the cost of her temporary accommodation elsewhere. On 24 May 2022 that request was refused as the costs were not covered by their insurance.
18. Ms Kearns contacted the Housing Safety Authority (the HSA) and they attended on 1 June 2022. On 14 June 2022, the HSA issued a report about the property in which a number of defects at the property were identified, and Mr and Mrs Phillips were required to rectify those defects before 14 September 2022.
19. On 29 September 2022, the HSA sent a letter to Mr and Mrs Phillips to inform them that all of the repairs had been carried out and the property was no longer subject to any orders by the HSA.
20. On 8 June 2022, at the request of Mr and Mrs Phillips, the Mould Doctor attended at the property and on 17 June 2022, the Mould Doctor provided them with a report about the mould at the property (this report included an analysis of samples from the property, undertaken by IAQ Analytics). A representative from the Mould Doctor carried out remediation works at the property on 5 July 2022.
21. On 17 June 2022, a solicitor for Mr and Mrs Phillips wrote to Ms Kearns offering for her to vacate the property with no break lease charges, a refund of rent from 3 May 2022 and a payment of $900 towards her accommodation expenses. Ms Kearns replied with a counter offer. Ms Kearns did not return to live at the property. She returned the keys to the agent on 12 August 2022.
22. On 22 June 2022, the Tribunal heard the repairs application, and orders were made for the landlord to undertake the works identified in the report of the HSA by 5.00 pm on Wednesday 20 July 2022.
23. Ms Kearns contacted Hazard Restoration and they took samples from the property on 4 July 2022 and 11 July 2022 for analysis.
24. Mr and Mrs Phillips served a number of notices requiring access for works to be undertaken at the property.
25. As Ms Kearns had not vacated the property by the vacate date in the Form 3 notice of termination, on 11 August 2022 Mr and Mrs Phillips made an application to the Tribunal seeking an order for vacant possession. As Ms Kearns vacated the property on 12 August 2022, this application was dealt with by the Tribunal as an application for the payment of compensation for claims arising from the end of the tenancy. The matter was referred to a conference which was conducted on 5 September 2022, but the matter did not resolve and it was referred to a full hearing.
26. On 15 September 2022, Ms Kearns lodged her application with the Tribunal seeking compensation for loss and inconvenience arising from Mr and Mrs Phillips' breaches of their obligations as landlords, during the tenancy.
27. The Tribunal dealt with the applications simultaneously. The matters were first listed for a hearing in December 2022 but the hearing was unable to proceed. The first hearing for the matters was conducted on 8 February 2023. The Tribunal conducted further hearings on 16 March 2023, 11 May 2023, 27 September 2023, 8 November 2023 and 14 December 2023. The Tribunal made an order on 10 April 2024 (this is the original Order of which Ms Kearns has now sought an internal review).

1. In deciding whether or not the original Order is the correct or preferable order, I will consider the following issues:

(i) Do any claims that the property was uninhabitable, impact on the question of when the tenancy ended?

(ii) What consequences flow from the decision about the end of the tenancy?

(i) Were Mr and Mrs Phillips entitled to claim against Ms Kearns for rent and water at the end of the tenancy?

(ii) Were Mr and Mrs Phillips entitled to compensation for any loss arising due to Ms Kearns being in breach of her obligations under section 69 RTA at the end of the tenancy?

(i) Were Mr and Mrs Phillips in breach of their obligations to Ms Kearns under section 68 RTA in relation to the condition of the property at the commencement of the tenancy?

(ii) Were Mr and Mrs Phillips in breach of their obligations to Ms Kearns under section 68 RTA in relation to the maintenance issues that arose during the tenancy (other than the water leaks, damp and mould); if so, did Ms Kearns suffer any loss or inconvenience as a result; and if so, is Ms Kearns entitled to any compensation for loss or inconvenience arising from that breach (taking into account her obligation to mitigate her loss)?

(iii) Were Mr and Mrs Phillips in breach of their obligations to Ms Kearns under section 68 RTA in relation to the condition of the property concerning the leaks, damp and mould; if so, did Ms Kearns suffer any loss or inconvenience as a result; and if so, is Ms Kearns entitled to any compensation for loss or inconvenience arising from that breach (taking into account her obligation to mitigate her loss)?

(iv) Were Mr and Mrs Phillips in breach of their obligation to Ms Kearns under section 65 RTA to provide her with quiet enjoyment of the property; if so, did Ms Kearns suffer any loss or inconvenience as a result; and if so, is Ms Kearns entitled to any compensation for loss or inconvenience arising from that breach (taking into account her obligation to mitigate her loss)?

1. In dealing with any claims arising at the end of the tenancy, the first question should be: when did the tenancy end, as that decision may have an impact on the claims. In a matter where the parties disagree, it is necessary to consider all of the relevant factors. When the tenant returned the keys is merely one of those factors, it is not necessarily determinative.
2. The following facts are relevant to this issue:
   • Mr and Mrs Phillips served a Form 3 notice of termination which brought the periodic tenancy to an end on 10 August 2022 - the notice was valid.
   • Ms Kearns moved out of the property on 3 May 2022, leaving her possessions in the property, but she never returned to live there.
   • Ms Kearns ceased paying rent on 3 June 2022 and at the end of her tenancy, rent was paid to 17 June 2022.
   • Towards the end of the tenancy, Mr and Mrs Phillips engaged an agent (Smith Partners) to manage the tenancy for them and on 10 August 2022, believing that Ms Kearns had abandoned the property, they attended and found that Ms Kearns had removed most of her belongings from the property.
   • Ms Kearns claims that she had not vacated the property on 10 August 2022, and she sent an email to the agent about that on 10 August 2022.
   • Ms Kearns handed back the keys on 12 August 2022.
3. The tenancy terminated on the expiry of the valid Form 3 notice of termination. However, Ms Kearns did not provide vacant possession of the property until 12 August 2022. Even though she had moved out on 3 May 2022, and even though she had ceased paying rent on 3 June 2022, I do not consider that she had abandoned the property. She had not handed back the keys and she sent an email on 10 August 2022 that she had not vacated.
4. Therefore, the parties' rights and obligations under the tenancy agreement continued until 12 August 2022 when Ms Kearns returned vacant possession of the property to Mr and Mrs Phillips.

Do any claims that the property was uninhabitable, impact on the question of when the tenancy ended?

1. Ms Kearns said that the property was uninhabitable due to the mould and she says this is clear from her experts' reports and it is also clear from the HSA report.[10] She moved out on 3 May 2022 because of this.
2. A residential tenancy agreement is merely a special form of contract, and so ordinary principles apply, subject to the provisions of the RTA.[11] It may be self evident that a property has become uninhabitable (for example, it is completely destroyed by fire). If that occurs, then from the moment the property becomes uninhabitable, the parties' rights and obligations to one another cease because it has become impossible to perform them. This is a principle of contract law.[12] This may also occur under a tenancy agreement by mutual agreement of the parties.
3. If neither of those situations has occurred, and if one of the parties is claiming that the property is uninhabitable, then it is for that party, to establish that has occurred (ie the property is uninhabitable) but according to the legal meaning of the term.
4. Under the RTA, a party to a tenancy agreement who claims that the tenancy has terminated due to frustration, has the right to serve a notice on the other party to that effect. If the other party disagrees, then either party may apply to the Tribunal seeking an order determining the dispute.
5. That did not happen in this matter. Although Ms Kearns claims that the property was uninhabitable, she did not vacate and in fact, she said that she wanted to continue with the tenancy even after that point.[13] It appears that she prepared a notice of termination on the basis of frustration, but she did not serve it. Mr and Mrs Phillips' position is that the agreement was not frustrated, and the property was not uninhabitable.
6. In these circumstances, the tenancy agreement has not been frustrated on the basis that the property was uninhabitable - neither party has taken action to obtain the agreement of the other that the tenancy was terminated due to frustration, and neither party has sought an order from the Tribunal to that effect.

What consequences flow from the decision about the end of the tenancy?

1. Ms Kearns claimed compensation for electricity and gas charges incurred after she moved out of the property on 3 May 2022,[14] on the basis that she was not residing in the property and so she was not using those utilities.
2. Even though she was not residing at the property, because Ms Kearns continued in possession of the property, her obligations to pay rent and the utilities also continued. If she wanted to terminate her liability for those utilities, she should have served a notice of termination on the basis of frustration, she should have sought a Tribunal order terminating the tenancy under section 89 RTA or she should have terminated her agreements with the utilities providers.

1. Mr and Mrs Phillips initially claimed the following amounts of compensation against Ms Kearns arising from the end of the tenancy:

1. In the original Order, the Tribunal allowed the claims for rent and water, and half the claim for gardening, but disallowed the claims in relation to cleaning. The original Order allowed compensation of $3,604.95 of Mr and Mrs Phillips' claims.

Were Mr and Mrs Phillips entitled to claim against Ms Kearns for rent and water at the end of the tenancy?

1. Ms Kearns was required to pay rent and water up until the date she handed back possession of the property to Mr and Mrs Phillips, for the reasons stated above (12 August 2022).
2. Accordingly, I agree with the determination in the original Order, that Ms Kearns is liable to pay rent of $3,040.00.
3. Although the Tribunal allowed the claim for water, in the hearing conducted on 8 February 2023, it was agreed that Mr and Mrs Phillips would not pursue a claim for amounts outstanding for water invoices.[15] Accordingly, I will disallow it.

Were Mr and Mrs Phillips entitled to compensation for any loss arising due to Ms Kearns being in breach of her obligations under section 69 RTA at the end of the tenancy?

The condition of the property at the commencement of the tenancy

1. Under section 69 RTA, a tenant is responsible to return a property in a reasonable condition and reasonably clean at the end of a tenancy, subject to the condition of the property at the commencement of the tenancy, and in relation to repairs, subject to fair wear and tear. If the tenant is in breach of that obligation, a landlord may claim compensation for losses incurred as a result of that breach.

1. In the original Order, the Tribunal found that Ms Kearns was not liable for the cleaning claims. In the course of the internal review, Ms Kearns sought to amend her claim to include a claim for cleaning of $2,200 on the basis that the property was not reasonably clean at the commencement of the tenancy. In a case where the tenancy has commenced many years ago, it is not appropriate to bring a claim of that nature. However, if the Tribunal had been inclined to allow any of the claim for cleaning, it would have been appropriate to take into account Ms Kearns' submission about the condition of the property in response to the claim.
2. I agree with the determination of the Tribunal in relation to this aspect of Mr and Mrs Phillips' claim.

1. In the original Order, the Tribunal has outlined the reasons for allowing half the claim for gardening.[16]
2. Ms Kearns claims that she left the garden in a reasonable condition at the end of the tenancy. She also disputes the amount of the claim on the basis that Mr and Mrs Phillips only provided the Tribunal with a quote for the work but in fact, did not have a contractor undertake the work.
3. In the review hearing, Mr and Mrs Phillips acknowledged that they undertook the work themselves. They said it took them about 12 hours. A landlord is entitled to undertake unskilled work required at the end of a tenancy to return the property to a reasonable condition and reasonably clean. Any such work is chargeable at an hourly rate of $31.21.[17]
4. I consider that the Tribunal's determination in relation to this claim is correct.
5. Therefore, I have concluded that the amount of compensation payable by Ms Kearns to Mr and Mrs Phillips is $3,520.00.

1. In the original hearing process, Ms Kearns sought compensation of $40,000. The Tribunal allowed compensation of $18,702.85 being:

Compensation (financial loss and inconvenience) $7,000.00

Compensation for breach of quiet enjoyment $2,000.00.

Preliminary issue - clarifying Ms Kearns' claim

1. Ms Kearns initially claimed compensation of $93,784.38, but she then provided a schedule of claims for $125,644.15. In the original hearing process, Ms Kearns said that she would only be claiming compensation of $40,000.[18] The Tribunal did not require Ms Kearns to provide particulars of her claim for $40,000.
2. This led to a misunderstanding by Ms Kearns about the manner in which the Tribunal could take into account her detailed schedules of claims. I understood Ms Kearns' position to be that even though she had reduced her claim to $40,000, nevertheless, the Tribunal would consider each item for which she had considered compensation and make a determination in relation to each such item.[19] If the Tribunal adopted this approach, the inevitable outcome would be that the Tribunal would be dealing with a claim for compensation which exceeds the jurisdictional limit.[20]
3. Therefore, I issued directions requiring Ms Kearns to clarify - of her claim for compensation of $40,000, how much compensation was she seeking for her claim about breach of Mr and Mrs Phillips' obligations under section 68 RTA in two parts - in relation to the maintenance issues raised during the tenancy, and in relation to the claims about leaks and the mould; and how much compensation was she seeking for her claim about breach of Mr and Mrs Phillips' obligations under section 65 RTA.
4. Ms Kearns provided a submission in which she sought the following compensation:-
   • $38,299.24 for maintenance defects;
   • $10,000 for breach of her right to quiet enjoyment and intrusions;
   • $2,200 for the property being unclean at the commencement of the tenancy.
5. For the reasons outlined above, the claim in relation to the condition of the property at the commencement of the tenancy is disallowed.
6. Therefore, I will proceed to deal with Ms Kearns' application on the basis that she sought compensation of $10,000 for breach of her right to quiet enjoyment under section 65 RTA, and $30,000 on the basis of her loss and inconvenience arising from Mr and Mrs Phillips' breach of their obligations under section 68 RTA.
7. My approach to Ms Kearns' application is to deal with her claims in terms of three broad categories:
   • The claim for compensation for Mr and Mrs Phillips' breach of their obligations under section 68 RTA concerning the condition of the property at the commencement of the tenancy and their breach concerning the maintenance issues reported by Ms Kearns throughout the tenancy (other than the claims about water leaks, damp and mould);
   • The claim for compensation for Mr and Mrs Phillips' breach of their obligations under section 68 RTA concerning the water leaks, damp and mould;
   • The claim for compensation for Mr and Mrs Phillips' breach of her right to quiet enjoyment under section 65 RTA.

The law in relation to a tenant's claim for compensation for breach of the obligations under section 68 RTA

1. In broad terms, section 68 RTA requires the landlord to ensure that the premises are in a reasonable state of repair at the commencement of the tenancy and the landlord will be in breach of this obligation if there is a defect in the premises which ought reasonably to have been apparent upon an inspection at that point (Varricchio v Wentzel (2016) SASC 86 at para 47).[21]
2. Once the tenancy has commenced, the landlord is not responsible for defects which arise subsequently unless the landlord is aware of the defect or ought to be aware of the defect and this is a different standard from that which applies at the commencement of the tenancy (Varricchio v Wentzel at paras 54 - 56). Once notified of the defect (and assuming the defect does not arise from the negligent or intentional actions of the tenant), the landlord will be in breach of the obligation if it is established that the landlord failed to act with reasonable diligence to repair the defect.
3. Where the landlord is in breach of the obligation under section 68 RTA, then the tenant may claim compensation for loss or inconvenience arising from that breach. The Tribunal has power to award compensation in those circumstances, under section 110(1)(c) RTA but the tenant must take reasonable steps to mitigate their loss.[22]
4. In relation to any claim for compensation, the Tribunal must consider the following issues:
   • Is the other party in breach of their obligations under the RTA or the agreement?
   • Has the claiming party suffered a loss or inconvenience as a result of that breach?
   • If so, should the claiming party be awarded compensation for that loss or inconvenience and in that regard -

• How much compensation might be reasonable on the basis of the extent of the loss or inconvenience?[23]
• Has the claiming party taken reasonable steps to mitigate their loss?

Issue 3.1: The claim for compensation for Mr and Mrs Phillips' breach of their obligations under section 68 RTA concerning the condition of the property at the commencement of the tenancy and their breach concerning the maintenance issues reported by Ms Kearns throughout the tenancy (other than the claims about water leaks, damp and mould)

3.1.1 Were Mr and Mrs Phillips in breach of their obligations to Ms Kearns under section 68 RTA in relation to the condition of the property at the commencement of the tenancy?

1. Mr and Mrs Phillips' position is that the property was in a reasonable condition at the commencement of the tenancy and in support of that position, at the review hearing they said that they had been living at the property for 13 years prior to Ms Kearns moving in.
2. At the review hearing, Ms Kearns submitted that the property was not in a reasonable condition at the commencement of the tenancy. She referred to the defects which she had identified by her on the ingoing inspection sheets.
3. Section 68 RTA requires that a landlord must provide a property in a reasonable condition at the commencement of the tenancy (and will keep them in a reasonable state of repair) having regard to the age, character and prospective life of the property. The qualifying words in section 68 RTA are important - a different standard will be expected of a property which is new, as opposed to a property which is 40 or 50 years old.
4. His Honour Justice Doyle explained this obligation in Varricchio v Wentzel as follows:[24]

... the net effect of the first limb of the s 68(1) obligation to repair is that the landlord will be in breach when the premises, at the commencement of the tenancy, are not in a reasonable state of repair by reason of a defect which ought reasonably to have been apparent upon an inspection of the premises prior to commencement of the tenancy. This is so regardless of whether the landlord (or their property manager) did in fact inspect or otherwise become aware of the defect. By reason of s 68(1a), it is also so regardless of whether or not the tenant in fact had notice of the defect by reason of their own inspection of the premises.

5. In this matter, Ms Kearns signed the ingoing inspection sheets. She noted a number of issues on the inspection sheets which were in summary:
   • The bedroom blinds were not functioning properly or were absent for all bedrooms;
   • The wardrobe door in bedroom 1 was coming off its rails;
   • A door handle for bedroom 2 was loose;
   • The door in the passageway did not close;
   • The linen press doors were stiff;
   • Two light globes were blown;
   • Taps in two places were mislabelled hot/cold;
   • The laundry door needed repair;
   • A fly screen door needed repair;
   • The café blinds get stuck
   • The roller door for the garage does not work with the remote control.

However, in the "general comments" section, Ms Kearns wrote the following:

Only few things need fixing - blinds to room 2 and 3, laundry door needs replacing/repair and handles fixed, bed 2 handle tightened, hallway door fixed to shut, how house alarm, roller remote working - thankyou!

1. In the Schedule of defects which Ms Kearns provided in the original hearing process, she said that she had identified the following defects on the ingoing inspection sheets at the commencement of the tenancy in addition to those items mentioned in paragraph 76:
   • the laundry window and door were rotten and leaking;
   • leaks in the ceiling of the living room;
   • the linen cupboard was swollen and mouldy;
   • the bathroom door was swollen and mouldy;
   • no floor covering in bedroom 3;
   • the bedroom 3 door gets stuck;
   • the laundry trough was rusty and mouldy;
   • the kitchen drawer was falling apart and unsafe;
   • the pantry door was not working properly;
   • the exhaust fan in the kitchen was not working;
   • the bathroom mirror was rusty and corroded;
   • the bathroom door was mouldy and swollen;
   • the lounge room blinds were not functioning;
   • no globes in part of the lounge - the note on the inspection sheets was one of 6 globes blown;
   • leaks in the lounge ceiling;
   • the side gate was permanently locked;
   • there were missing pavers;
   • the eaves were mouldy and dropping;
   • the safety switch was not functioning properly;
   • the washing line did not function properly;
   • painting on the fence.

None of those items has been identified in those terms in the ingoing inspection sheets (most of those items have not been identified at all).

1. In my view, the issues that were raised by Ms Kearns at the commencement of the tenancy, are relatively minor. Therefore, notwithstanding those defects mentioned in the ingoing inspection sheets, I consider that the property was in reasonable condition at the commencement of the tenancy.

Issue 3.1.2: Were Mr and Mrs Phillips in breach of their obligations to Ms Kearns under section 68 RTA in relation to the maintenance issues that arose during the tenancy (other than the water leaks, damp and mould)?

1. In summary, Ms Kearns' submission is that this aspect of the original Order is incorrect because:

a) Mr and Mrs Phillips did not use reasonable diligence to carry out repairs once notified of defects, and this is clear from her multiple communications with them by email and text message. > > b) The Tribunal incorrectly adopted the approach of Mr and Mrs Phillips' solicitor, which was that due to the friendly nature of the communications between the parties concerning these breaches, the appropriate conclusion is that the defects were relatively insignificant, and if they had been significant, then she would have been more forceful and persistent in her communications about them. > > c) She had identified multiple defects at the property, and she relied on a schedule of approximately 80 defects which Ms Kearns said that she had notified Mr and Mrs Phillips about during the tenancy (or at the commencement of the tenancy). > > d) She had served multiple section 68 notices: > > * 19 November 2018 - identifying defects to the pantry door, back screen door, bathroom sink, bathroom drawer handle, exhaust fan light, dishwasher wood, kitchen tap leak, lights in the main bedroom, bathroom lights, power points in lounge, gutter - weeds growing in them, walk in robe door falling off, shed door handle, pura tap, lounge light globes need replacing, brightness of lights in bedroom 3; > * 15 October 2019 - referring to the notice of 19/11/18 and stating that those repairs had not been undertaken, and also identifying the power point in the lounge room as urgent, the shed door handle, the leaking kitchen tap, the walk in robe door and the toilet seat lid; > * 31 March 2020 - identifying the dishwasher not draining; > * 3 May 2020 - identifying the collapsing section of the eaves outside bedroom 3, the replacement of lights in the kitchen and outside, the broken drawer in the bathroom, the leaking roof, the bird bath which had been broken by the landlord; > * 9 November 2020 - identifying the cooktop (one gas burner not functioning); > * 30 March 2021 - identifying the drawer in the kitchen, the door on the kitchen cupboard. > > e) She also provided the Tribunal with approximately 450 pages of photographic evidence, email exchanges and text messages, various receipts (pages 55 - 89 of her documents) and written submissions in support of her claim in this regard.

2. Mr and Mrs Phillips relied on the submissions that had been made by their legal representative in the course of the original proceedings, and the submissions they had provided in the course of those proceedings. They submitted that they had used reasonable diligence to carry out repairs when notified of a defect. In the review hearing, Mr and Mrs Phillips said that on each occasion they received a section 68 notice from Ms Kearns, they considered they had acted appropriately to repair the defects within a reasonable time.
3. In particular, Mr and Mrs Phillips submitted that Ms Kearns had sent a number of communications to them in which she said that although she was raising defects which required repair, they were relatively unimportant, or were not causing her any inconvenience. For example, they referred to an email which had been sent by Ms Kearns on 20 November 2018.
4. Mr and Mrs Phillips provided the following evidence and submissions in support of their response to this claim (in the course of the original proceedings and in addition to their oral evidence and the oral submissions of their legal representative in the original proceedings):
   • a maintenance schedule on which they have explained the actions they have taken in response to every defect reported by Ms Kearns;
   • various invoices (for work done at the property by contractors);
   • various items of correspondence between the parties.

Conclusions as to whether or not Mr and Mrs Phillips were in breach of their obligation under section 68 RTA in relation to the maintenance issues reported during the tenancy (other than the water leaks, damp and mould)

1. In the original Order, the Tribunal declined to make a finding that Mr and Mrs Phillips were in breach of this obligation because some of the issues she raised were trivial, and she had taken too long to raise them.
2. I note that in the ordinary hearing process, Mr Thompson submitted that Ms Kearns should "lose the shield" of section 68 RTA due to the nature of her communications with Mr and Mrs Phillips, which suggested that the defects were minor or the inconvenience arising from them was minor - in other words, that it was not necessary for repairs to be carried out.
3. I disagree with that submission. Section 115 RTA prevents parties from contracting out of their obligations under the RTA. However, Ms Kearns' communications may be relevant in the context of any inconvenience she has suffered as a result of the breach, and any compensation to be awarded to her as a result of the inconvenience.
4. I have reviewed the schedule of defects lodged by Ms Kearns, and the evidence in relation to those defects. I do not accept that all of the issues identified by Ms Kearns in her schedule of defects, are defects which required repair within the meaning of section 68 RTA for the following reasons:

1. some of the issues are not properly regarded as a defect;[25] 2. some of the issues raised by Ms Kearns are simply wear and tear and not properly regarded as a defect;[26]

• some of the issues are minor - * it is reasonable to expect a tenant to perform minor maintenance issues themselves;

1. whether or not a tenant performs any minor maintenance tasks, it is likely that any inconvenience is relatively insignificant and accordingly, it is reasonable to disregard the report of the matter as a defect.[27]
2. I am satisfied that Mr and Mrs Phillips used reasonable diligence to carry out repairs about each of the following defects:

The exhaust fan and light in the kitchen[30]

The hallway door,[34] the screen door and another door[35]

The roller door and the roller door remote[38]

1. I am satisfied that Mr and Mrs Phillips failed to take reasonable action to carry out repairs about each of the following defects of which they were notified by Ms Kearns (because the repairs took too long, or were not carried out, or were not carried out to an adequate standard):

The walk in robe door which came off its hinges[39]

The drawers in bedroom 2 and 3 - I accept Mr and Mrs Phillips' statement that they were functioning at the commencement of the tenancy. However, it is clear they were not functioning properly - I consider it is likely that the drawers were not particularly robust[40]

The door for bedroom 3, and the roller shutter for bedroom 2

Did Ms Kearns suffer any loss or inconvenience as a result of Mr and Mrs Phillips' breach?

1. Ms Kearns submits that she was inconvenienced because of Mr and Mrs Phillips' delays in carrying out repairs to the defects which she identified, or their failure to carry out repairs at all. She has submitted numerous documents summarising the events, and she has submitted multiple communications between herself and Mr and Mrs Phillips concerning the maintenance issues.
2. Ms Kearns says that she was inhibited in pressing her claims with Mr and Mrs Phillips due to the power imbalance.[50]
3. Mr and Mrs Phillips relied on the submissions of their legal representative in the original hearing process, in particular, Ms Kearns' email communications in which she makes light of the issues:[51]

I should have asked for these things over the past few years but didn't want to bother you. I've been working with a health coach and he said first part of removing stress from your life, is any small niggling things around the house that need doing, which makes sense as there are a lot I'm silly and trying to ignore ...

They consider that the original Order is the correct and preferable order and that no compensation should be payable to Ms Kearns for these maintenance issues. They also relied on invoices and their repairs schedule.

1. I am satisfied that Ms Kearns suffered inconvenience due to Mr and Mrs Phillips' breach of their obligations in relation to those maintenance issues identified in paragraph 103 above.

Is Ms Kearns entitled to compensation for her inconvenience, taking into account her obligation to mitigate her loss?

1. The Tribunal has power to award compensation for inconvenience or financial loss[52] but not distress or loss of enjoyment of the property. A tenant cannot claim compensation for personal injury (such as stress or another medical condition).[53]
2. The Tribunal's general approach (as stated in the original Order), is that any amount of compensation to be awarded is not determined in accordance with any set scale or formula. The amount of any compensation to be awarded is a global amount taking into account all of the factors in the particular dispute.[54]
3. In addition to the general power to award compensation, under section 68(3) RTA a tenant may recover certain specific costs which the tenant has incurred.
4. Section 78 RTA applies the common law principles about mitigation of loss to any claim for compensation arising from a breach of a residential tenancy agreement. Therefore, in making such a claim a tenant is required to take reasonable steps to mitigate any loss and is not entitled to compensation for damage that could have been avoided by those steps.

The application of the law to this aspect of the claim

1. In relation to a claim of compensation for inconvenience, the Tribunal does not apply a formula or other precise method of calculating compensation in these matters,[55] but I consider it is reasonable for the Tribunal to provide a general explanation as to its reasoning for any compensation awarded. In relation to a claim for losses incurred as a result of a breach, there should be evidence to substantiate the claim.
2. I have taken into account the following factors in forming a view about this aspect of the claim:

a) In her own email of 20 November 2018, Ms Kearns has referred to a number of defects mentioned in that email as being "niggling" and in the same email she referred to certain repairs as "not essential" or "trivial". Such descriptions suggest that the defects themselves are relatively minor, and so is any inconvenience experienced by Ms Kearns in relation to them. > > b) I consider that the section 68 notices are the most helpful indicator of repairs and inconvenience that are more significant.

1. In my view, where there has been a substantial delay by a tenant in pursuing their rights concerning a breach of the obligation under section 68 RTA, such a delay must be taken into account, in particular, in relation to the obligation on a tenant to take steps to mitigate their loss.[56]

Ms Kearns argued that her delay was attributable to the power imbalance between her and Mr and Mrs Phillips. I understand that a tenant can feel at a disadvantage in dealings with a landlord,[57] and a tenant may be concerned not to get "offside" with their landlord; but I do not accept Ms Kearns' submissions that it was necessary for her to be "nice" or "kind"[58] to Mr and Mrs Phillips.

d) In addition, any actions by a tenant in failing to facilitate access by a landlord or their contractor to carry out repairs, must be regarded as a failure to mitigate their loss.[59]

e) Finally, I observe that Ms Kearns' case is that from the outset of this tenancy, there were defects at the property which Mr and Mrs Phillips failed to adequately address (if at all) for the duration of the tenancy, and as a result, she suffered loss or inconvenience. Ms Kearns remained at the property for seven years. While I accept that it is expensive for a tenant to move, and in the current rental market, it can be challenging for a new tenant to find a new property; nevertheless, that is a long time for a tenant to remain in a property if the tenant is experiencing a significant degree of inconvenience and loss due to the unrepaired defects there.

1. In addition to her claim for inconvenience, Ms Kearns claimed $50 for the replacement of a remote control for a roller shutter during the tenancy. This was allowed in the original Order,[60] and I will also allow that claim, for the same reasons.
2. Taking into account all of the evidence, I would allow Ms Kearns compensation of $2,000.00 for her inconvenience for this aspect of the claim and $50.00 for the replacement of the remote control. This is a total amount of $2,050.00.

Issue 3.2: The claim for compensation for Mr and Mrs Phillips' breach of their obligations under section 68 RTA concerning the water leaks, damp and mould

1. I will deal with this issue in two parts - defects which were reported in relation to water leaks and the mould up until 3 May 2022, and then defects which were reported in relation to water leaks and the mould from 3 May 2022.

Issue 3.2.1 - The claim for compensation about water leaks, damp and mould at the property before 3 May 2022

Were Mr and Mrs Phillips in breach of their obligations under section 68 RTA in relation to what happened at the property in relation to the water leaks, damp and the mould before 3 May 2022?

a) She reported the issue of leaks at the property on multiple occasions during her tenancy, in particular, in the living area on:[61]

She also reported a problem with the lights after some particularly heavy rain in March 2020. She said that her reports were not taken seriously - for example, on one occasion, Mr and Mrs Phillips told her to soak up any leaks with towels.

b) She reported the issue of the gutters on 19 November 2019 and 26 November 2019. In the original hearing process, Ms Kearns said that the gutters were still blocked when she vacated.[62]

c) She reported the issue of mould and a collapsing section of the eaves outside Bedroom 3 on 3 May 2020 but this was still problematic at the end of the tenancy.

d) She reported the issue of mould in the bathroom (the door, the bath, the shower and the tiles) on 26 June 2019 and in various other communications with Mr and Mrs Phillips.

e) There was a problem with damp and mould from the outset of the tenancy[63] because of:

(i) the issue with the carpet in the second bedroom which she had reported in May 2015;[64]

(ii) the defects in the laundry - she had reported that the trough was mouldy and rusty and the linen cupboard was also swollen and mouldy early on in the tenancy; she had also reported the back door and window were damaged so that they allowed water to enter early on in the tenancy.

f) She reported a leak in the toilet in 2019 and then there was another leak in February 2022, which Mr and Mrs Phillips failed to address sufficiently quickly.

a) There was not a problem with damp and mould at the property from the commencement of the tenancy (and noting in particular, that they had lived at the property prior to Ms Kearns moving in). They had carried out repairs to the roof when reports had been made about leaks by applying silicone.[65]

b) The gutters were cleaned on 15 June 2019 and then on average about annually.

1. They carried out repairs to the eaves on 3 May 2020, and nothing further was reported until May 2022.[66]

d) Repairs were carried out to the bathroom during the tenancy including new silicone in 2019, and Ms Kearns' actions in failing to keep the bathroom adequately clean contributed to any mould issue in the bathroom.

e) In relation to the issue of the carpet in bedroom 2, Mr and Mrs Phillips referred to the messages with Ms Kearns at the commencement of the tenancy in which she refers to the staining and smell of the carpet in bedroom 2. They said that they offered to replace the carpet, but it did not suit Ms Kearns because she did not want to move furniture out of the bedroom, even though they offered to assist her with that.[67] They submitted that any damage to the carpet in bedroom 2 could have been caused by the leak from Ms Kearns' washing machine.[68]

f) They were not aware of the issue with the external door in the laundry, or the laundry window or the linen cupboard until the end of the tenancy.[69]

g) Ms Kearns reported a leak in the toilet to Mr and Mrs Phillips on 13 February 2022 at 9.30 pm. On 14 February 2022 at 7.05 am Mr and Mrs Phillips advised Ms Kearns to make her own arrangements for the leak to be repaired (for which she was reimbursed). The repairs were carried out on 17 February 2022. There had also been a leak in the toilet in 2019 and that was fixed immediately.

1. In the hearing conducted on 8 November 2023, Mr Thompson submitted[70] that none of the reports obtained by any of the parties, is clear as to the source of the mould contamination in the house at the end of the tenancy. He refers to the report of Flynn Builders, (who were appointed by the insurer) and notes that report refers to the damp in the laundry having been caused by Ms Kearns' washing machine or the damaged window and door and the likelihood that this event caused any damp and mould in bedroom 2.

Conclusions about whether Mr and Mrs Phillips in breach of their obligations under section 68 RTA in relation to what happened at the property up until 3 May 2022 concerning the water leaks, damp and the mould

1. In the original Order,[71] the Tribunal found that Mr and Mrs Phillips were in breach of their obligations under section 68 RTA.
2. I agree with the finding in the original Order that Mr and Mrs Phillips were in breach of their obligations under section 68 RTA in relation to the leaks, damp and mould at the property during the course of the tenancy because:

a) They failed to regularly clean out the gutters of the house - whether gutter cleaning is a tenant or a landlord responsibility varies from one tenancy to another and depends on the particular house, however, Mr and Mrs Phillips had said that they would take care of the gutters in this property. In the review hearing, Mr and Mrs Phillips said that they cleaned out the gutters about once a year. This is not enough. In my view most gutters need to be cleaned out about once every quarter. In my assessment, this issue is likely to have contributed to leaks.[72]

b) They failed to arrange for an appropriately qualified tradesperson to attend to leaks in the roof. It is not an adequate response for a landlord to carry out such repairs themselves (unless they happen to be qualified in that regard), and the inadequacy of those repairs is demonstrated by the repeated occurrences of the leaks.

c) They failed to carry out routine inspections of the property - at the review hearing, Mr and Mrs Phillips said that they considered that their reasonably regular attendances at the property were sufficient. I disagree. Ms Kearns served section 68 notices in 2018, 2019, multiple notices in 2020, 2021 and then she notified Mr and Mrs Phillips of issues with the lights in the house apparently arising due to some heavy rain, in March 2022. These notices should have made Mr and Mr Phillips aware that they should have been carrying out inspections of the property to investigate the defects reported by Ms Kearns, and generally.

Because of Ms Kearns' reports, Mr and Mrs Phillips are not absolved from responsibility for defects they would have reasonably noticed on an inspection.[73]

d) I accept that Mr and Mrs Phillips carried out some repairs to the eaves during the tenancy, but those repairs were inadequate.[74]

e) I do not accept Ms Kearns' evidence that she reported the issues with the defects, and the damp and mould in the laundry at the outset of the tenancy but I accept that as the tenancy wore on, a problem with damp and mould developed in the laundry.

However, I do not accept that all of the issues with mould and damp in the laundry are entirely the responsibility of Mr and Mrs Phillips for the following reasons:

• In a house of this age, a small amount of damp and mould in a wet area such as a laundry is to be expected and the report of Jim's Building Inspection states that there is no significant moisture in that area and only a small amount of mould.[75]
• Flynn Builders' report,[76] states that the damage at the property was caused by "tenant neglect", arising from a leak in the washing machine. The report identifies mould in the bedroom carpet, robe swollen in the bedroom, laundry swollen cabinetry, kickers, and end panel.
• The report of True Blue Plumbing[77] states that there was a leak in the laundry which had damaged the window and external door, and the laundry cabinet; the defect had been present for over a year; and it was caused by wear and tear and a lack of maintenance.

1. I am not satisfied that Mr and Mrs Phillips were in breach of their obligations under section 68 RTA in relation to the following issues:

a) I consider their actions were consistent with the requirements of section 68 RTA in relation to the leaks in the toilet.

b) In relation to the carpet in bedroom 2 - Mr and Mrs Phillips were aware that there was a problem with the carpet in bedroom 2 - they had partially removed it, and had offered to remove the rest and replace it, but it was not convenient for Ms Kearns. That was not their fault.[78] I am not satisfied that any further conclusions can be drawn in relation to the issue of damp and mould in bedroom 2 prior to the end of the tenancy, and even if there was an issue, that it was their responsibility given the issue of Ms Kearns' leaking washing machine (which occurred in an adjacent room).

c) In relation to the bathroom - I accept that there was some mould and damp in the bathroom. I accept that Mr and Mrs Phillips carried out some repairs during the tenancy. I consider that if the issue was a recurring or unresolved problem, then Ms Kearns would have identified it repeatedly in her section 68 notices. Further, with a house of this age, I consider that it is reasonable for there to be some damp and mould in the bathroom - this is not inconsistent with the obligation under section 68 RTA.

1. In conclusion in relation to this issue, in my assessment, the issues with damp, leaks and mould that were occurring during the course of the tenancy were primarily attributable to two issues:

• Firstly, the issue arising from the leaks in the roof - this was occurring in the living room, and in other rooms of the house, and also in a certain section of the eaves;[79]
• Secondly, the damp in the laundry area - I consider this is likely to have occurred partly due to the poor condition of the door and window, but partly due to the leak from Ms Kearns' washing machine.

Did Ms Kearns suffer any loss or inconvenience arising from Mr and Mrs Phillips' breach concerning the leaks, damp and mould during the tenancy and before 3 May 2022?

1. Ms Kearns submits that she did suffer loss and inconvenience being:[80]
   • the landlords' expectations that she would clean up each time there was a leak;

• the damage to some of her items due to the leaks.[81]

1. Mr and Mrs Phillips submitted that any loss or inconvenience was relatively minor. They relied on Ms Kearns' email of 20 November 2018 in support of their submission that any leaks and damp during the tenancy was a relatively minor issue.
2. I accept that Ms Kearns suffered some loss or inconvenience as a result of the breaches during the tenancy, but I consider that her loss or inconvenience at that time was relatively minor. This is supported by the fact that when Ms Kearns first identified multiple defects with the property in writing,[82] she did not refer to an issue of damp or mould and she stated that she was sure with a little "TLC" the property could be "perked up a bit" and she would love to stay as long as possible.

I consider that these breaches also contributed towards Ms Kearns' losses and inconvenience at the end of the tenancy - I will consider that issue below.

Is Ms Kearns entitled to any compensation for loss or inconvenience arising from that breach (taking into account her obligation to mitigate her loss)?

1. In her written submission in the Internal Review, Ms Kearns claims compensation of $5 for a notebook, and $400 for the replacement of a damaged TV unit. I consider that $200 compensation is reasonable for this aspect of the claim.
2. I have made comments above about the Tribunal's approach in relation to a claim for compensation for inconvenience. In relation to this aspect of the claim, I have taken into account the following factors:

a) The property was in reasonable condition at the commencement of the tenancy, and these issues gradually emerged during the tenancy. > > b) The leaks were intermittent but Ms Kearns did raise them on a number of occasions. > > c) The cause of damp in the house is likely to have been due to a number of factors most of which were the responsibility of the landlords (the leaks and the poor condition of the laundry door and window), but Ms Kearns' leaking washing machine is also likely to have been a contributing factor.

d) When Ms Kearns first identified multiple defects with the property in writing,[83] she did not refer to an issue of damp or mould and she stated that she was sure with a little "TLC" the property could be "perked up a bit" and she would love to stay as long as possible. This suggests that any defects in the property at that point were relatively minor.

e) Ms Kearns did not pursue her rights in relation to a claim of compensation until the end of the tenancy. As I have said above, where there has been a delay by a tenant in pursuing their rights concerning a breach of the obligation under section 68 RTA, such a delay is likely to mean that a tenant has failed to take steps to mitigate their loss.[84] I have already dealt with the argument about the power imbalance.

f) I repeat the comments I have made above concerning the length of time for which Ms Kearns stayed in the property, and the conclusion that therefore, the extent of any loss or inconvenience during the tenancy is unlikely to have been seriously problematic.

1. Taking into account all of the above factors, I consider that Ms Kearns should receive compensation of $1,500 for her inconvenience arising from this breach. This means that the total amount of compensation for Ms Kearns for this aspect of her claim is $1,700.00.

Issue 3.2.2: The claim for compensation about water leaks, damp and mould at the property after 3 May 2022

Were Mr and Mrs Phillips in breach of their obligations under section 68 RTA in relation to what happened at the property in relation to the water leaks, damp and the mould after 3 May 2022?

1. Ms Kearns provided a chronology of events from 3 May 2022 until 29 September 2022, in her original folder of materials. In summary, Ms Kearns' position is as follows:

a) By May 2022, Ms Kearns, her son and their dogs were all experiencing significant health issues. She sought advice from an independent specialist, O'Sheas, on 3 May 2022 who advised her that, because of the levels of mould at the property, that was likely to be causing their health problems, and they should move out. Acting on the advice of O'Sheas, Ms Kearns did move out. She advised Mr and Mrs Phillips immediately about the problem by serving a section 68 notice. > > b) On 7 May 2022, Ms Kearns served another section 68 notice on Mr and Mrs Phillips in which she identified mould and damage in multiple areas of the house (in particular, the linen cupboard in the laundry, the carpet in bedroom 2, the built in robe in bedroom 2, the exterior laundry door, the vanity unit in the bathroom, the silicone around the shower). Ms Kearns refers to extensive symptoms being experienced by her and her son, and that due to their poor health, they have moved out, but they have left their belongings there.

c) Ms Kearns also served the following section 68 notices at around this time:

• a notice on 7 May 2022 requesting for a building biologist to be arranged to attend and inspect the property;
• a notice on 13 May 2022 which requires the hedge to be trimmed;
• a notice on 6 July 2022 concerning the paving.

d) Mr and Mrs Phillips' response was inadequate because:

• It was too slow - she served multiple section 68 RTA notices on them during this period to impress upon them the urgency of the matter -
  • The contractor employed by them (the Mould Doctor) conducted an inspection on 8 June 2022 but did not perform remediation until 8 July 2022;
• The remediation performed by the Mould Doctor was inadequate - they use a technique called fogging, which is not highly regarded in the industry and her follow up testing on 1 August 2022 established that the property had not been adequately remediated;
• Because of the inadequate response by Mr and Mrs Phillips, Ms Kearns was effectively compelled to take urgent action to address the issue:
  • She sought experts' reports from a building biologist (Building Biology SA) and she also contacted Hazard Restoration and samples were collected on 4 July 2022 and 11 July 2022 for analysis;
  • She reported the property to the HSA who conducted an inspection on 1 June 2022 and found the property to be substandard;
  • She initiated an application to the Tribunal.

e) Due to the breaches of Mr and Mrs Phillips in this regard, Ms Kearns has experienced significant inconvenience and loss.

1. In summary, the position of Mr and Mrs Phillips is as follows:

a) They disagree that they were in breach of their obligations under section 68 RTA in relation to defects arising (or identified) on or after 3 May 2022. > > b) They acted with reasonable diligence when they received Ms Kearns' report about her moving out due to the issue of mould by taking or being responsible for the following actions (though their insurer): > > * Notifying their insurer of the issue at the property on 4 May 2022 and the insurer took the following action in relation to their report: > * they sent Cowans Restoration to inspect the property on 6 May 2022 who found no visible mould; > * they sent another builder on 12 May 2022 who was unable to obtain access; > * they arranged for Flynn Builders to attend to conduct an inspection on 19 May 2022, and they found that the damage at the property was caused by "tenant neglect", arising from a leak in the washing machine. The report identifies mould in the bedroom carpet, robe swollen in the bedroom, laundry swollen cabinetry, kickers, and end panel. The report states that no temporary accommodation is required; > * Flynn Builders arranged for True Blue Plumbing to attend. They reported that there was a leak in the laundry and there was damage to the window and external door, and the laundry cabinet; the defect had been present for over a year; and it was caused by wear and tear and a lack of maintenance. > * Requesting a building inspection which occurred on 11 May 2022, by Jim's Building Inspections. In that report, the contractor found that: > * There was mould in the laundry which needed to be professionally cleaned; > * There was mould in the carpet in bedroom 2 which was likely attributable to the leak from the washing machine which had occurred many years ago; > * There was mould in some of the eaves, and the eaves should be repaired and cleaned; > * The blocked gutters needed to be fixed. > * They arranged for the Mould Doctor to attend and an inspection was carried out on 8 June 2022, and a report was provided on 17 June 2022. > * On 26 June 2022 they participated in the Tribunal hearing, and it was agreed that an appropriate response for them was to carry out repairs to the defects identified in the HSA report by 20 July 2022. > * They served a number of notices requiring access for works to be undertaken at the property: > * On 27 June 2022 they served two notices requiring access to the property for contractors to carry out remedial work to be carried out on 30 June 2022 and 4 July 2022 respectively. > * On 29 June 2022 they served a notice requiring access to the property for remedial works to be carried out on 4 July 2022. > * On 5 July 2022 they served a notice requiring access to the property for remedial works to be carried out on 13 July 2022. > * On 15 July 2022, they served a notice requiring access to the property for remedial works to be carried out on 15 July 2022.

1. On 17 June 2022, a solicitor for Mr and Mrs Phillips wrote to Ms Kearns offering for her to vacate the property with no break lease charges, a refund of rent from 3/5 and a payment of $900 towards her accommodation expenses.

d) They disagree that the remediation works carried out by the Mould Doctor, were inadequate. They say that the contractor advised them that the property is safe for persons to reside there, and they have placed new tenants in the property.

1. In the original Order, the Tribunal found that there was an undue delay in the landlords' response to the leak in the vicinity of the toilet/laundry and that contributed significantly to the escalation of mould within the property.

Conclusions about whether or not Mr and Mrs Phillips were in breach of their obligations under section 68 RTA concerning what happened at the property in relation to the water leaks, damp and the mould after 3 May 2022

1. I consider that the report of the HSA is particularly useful as an objective assessment of the condition of the property on about the time that Ms Kearns moved out. In that report (dated 1 June 2022), the HSA has assessed the property as being substandard in relation to the following:
   • Mould in the bathroom;
   • A crack in the ceiling in the living room/entrance;
   • Damp/mould in the floor of bedroom 3;
   • Hole in the ceiling of bedroom 2;
   • Moisture in the floor of bedroom 2;
   • Mould in the ceiling of the laundry;
   • Defects in the ceiling of the kitchen (cracking and moisture);
   • Roof leaking and mould in the shed;
   • Verandah eaves - mould and damaged.

The HSA has assessed those issues as creating a moderate risk.

1. I consider that Mr and Mrs Phillips were in breach of their obligations under section 68 RTA to use reasonable diligence to carry out repairs during the tenancy, and this was a major contributing factor to the issues identified by the HSA at the end of the tenancy. In particular, I have found that Mr and Mrs Phillips were in breach in relation to the following:[85]
   • they failed to regularly clean out the gutters of the house;
   • they failed to arrange for an appropriately qualified tradesperson to attend to leaks in the roof;
   • they failed to carry out routine inspections of the property in response to reports of defects made by Ms Kearns.
2. However, Mr and Mrs Phillips' breach was not the only contributing factor to the issues identified at the end of the tenancy in relation to the condition of the property - I have found that the washing machine leak was also a contributing factor, and I have found that there may have been an issue with Ms Kearns failing to take adequate steps to manage the mould in the bathroom during the tenancy.
3. In my view, it is particularly significant that Mr and Mrs Phillips did not carry out inspections during the tenancy (particularly given the regular section 68 notices served by Ms Kearns). If they had, then I consider it is likely that the defects which had become problematic at the end of the tenancy (and which were identified in the HSA report), would have been evident, and they could have taken steps earlier to address them. This conclusion, supported by the report of True Blue Plumbers, identifies that the laundry has been damp (or mould present) for at least a year.
4. I am also satisfied that Mr and Mrs Phillips were in breach of their obligations under section 68 RTA in relation to their actions once notified by Ms Kearns about the issues on 3 May 2022 for the following reasons:

a) They did not act sufficiently swiftly to arrange for the mould outbreak to be assessed and addressed. Although they reported the issue to their insurer immediately, and they had a building inspection carried out, they did not arrange for a contractor to attend at the property to make an assessment of the issue of damp and mould at the property until 8 June 2022, and they did not arrange for the attendance of the contractor to carry out remedial work until 8 July 2022 - this was too long. The report from Jim's Building Inspections was provided on 11 May 2022 and that report made it clear the following issues had to be addressed: > > * mould in the laundry; > * mould in the carpet in bedroom 2; > * mould in the eaves > * blocked gutters. > > b) They relied on the advice of the Mould Doctor contractor, that the treatment used by them had reduced any mould outbreak to an acceptable level. Further testing should have been undertaken after the work had been done, to establish that any mould remaining at the property was within safe levels.

In this regard, I note that there is a significant difference in the advice of the Mould Doctor and the advice of the other experts sought by Ms Kearns. In particular, I refer to the following comments in the Hazard Restoration report:[86]

We re-attended site on 11/07 once remediation organised by the owner had occurred to re-evaluate the new state of the contents throughout the property. Areas of visible mould growth has been left in place (within laundry and to the carpet and gripper within the adjacent Bedroom 2). ...It is important to note that fogging alone without source removal is not currently approved practice under IICTRC standards and in this instance has shown to not have been successful in its remediation attempt.

Did Ms Kearns suffer any loss or inconvenience arising from Mr and Mrs Phillips' breach concerning what happened at the property concerning the leaks, damp and mould after 3 May 2022?

1. Ms Kearns made detailed submissions in her written submissions concerning compensation. In summary, her claims for reimbursement fall into the following categories:
   • Utilities
   • Temporary Accommodation and meals
   • Damaged belongings - and the cost of replacing those items
   • Costs in removing her belongings, and disposing of some of them
   • Reimbursement for the cost of the expert reports she obtained.
2. Ms Kearns also sought compensation for inconvenience arising from having to vacate the property earlier, and in dealing with the issues arising from the mould outbreak at the property.
3. Mr and Mrs Phillips dispute this aspect of the claim. They said that they had paid for the cost of the experts' reports.
4. I accept that Ms Kearns has suffered loss and inconvenience as a result of Mr and Mrs Phillips' breach concerning the leaks, damp and mould after 3 May 2022.

Is Ms Kearns entitled to any compensation for loss or inconvenience arising from that breach (taking into account her obligation to mitigate her loss)?

1. Ms Kearns sought reimbursement for the expenses identified above. She also sought compensation for her inconvenience. She said that the extent of the mould contamination at the property when she moved out, meant that she had no choice but to vacate. The costs she incurred and her inconvenience were a direct result of these occurrences.
2. Mr and Mrs Phillips disagreed with Ms Kearns' claims for compensation. In particular, they said that she had failed to mitigate her loss because the work of the Mould Doctor returned the property to a condition in which it is habitable, and this occurred by 8 July 2022. Accordingly, Ms Kearns could have returned to the property until the date on which their Form 3 notice of termination expired (10 August 2022).
3. Mr and Mrs Phillips also referred to their offer for Ms Kearns to vacate early without any break lease costs.

1. In the original Order in relation to this issue, the Tribunal allowed the following compensation:

A contribution towards the cost of the expert reports: $4,170.00

1. I refer to my comments above, concerning the law in relation to compensation, and its application in relation to a claim for inconvenience.[87]
2. I have explained why Ms Kearns was required to continue to pay for utilities until she handed back possession of the property to Mr and Mrs Phillips.
3. In making an assessment of this aspect of the claim for compensation, I have taken into account the following factors:

a) The cost of experts' reports - I agree (with the original Order) that Mr and Mrs Phillips should not have to pay for all of the costs of the experts' reports. I consider that it may not have been necessary for Ms Kearns to go to the lengths she did in that regard. I consider the amount allowed in the original Order of $4,170.00 is reasonable. > > b) The cost of alternative accommodation and meals - Ms Kearns claimed a total amount of $6,303.45 in this regard.

I do not agree with an approach that Ms Kearns is entitled to a refund of rent or a waiver of rent. The correct approach is that she is entitled to compensation for actual losses incurred or inconvenience suffered, as a result of the breaches of Mr and Mrs Phillips. The amount of compensation payable should be an assessment of what is reasonable on an objective assessment, and taking into account issues of mitigation.

I accept that anyone living in the house would probably have been required to vacate for a period, while remediation works were done. However, Ms Kearns chose to vacate the property on the advice of O'Sheas, and without consultation with Mr and Mrs Phillips. She chose not to return to the property on the basis of the report of Hazard Restoration, again without consultation with Mr and Mrs Phillips.

Part of Ms Kearns' decision about leaving the property and not returning, was the impact of the mould at the property on her health and that of her son.[88] This is a subjective assessment on her part. While the issue of mould may have impacted on her and her son to that extent, it may not have impacted on others to the same extent.

It is common knowledge that mould spores occur in the atmosphere as a matter of course, and some people are more susceptible to mould outbreaks than others.

If a tenant is more susceptible to the impact of a mould outbreak on their health, that is not the responsibility of the landlord - the landlord is only required to provide a property in a reasonable condition on an objective assessment, and to use reasonable steps to remedy any defects - also, on an objective assessment.

In my assessment, there is a real possibility that Ms Kearns and her son are particularly susceptible to mould and Ms Kearns's decision about when they needed to leave and their inability to return, was made solely on the basis of that factor.

1. I accept that Ms Kearns has incurred expense in replacing or cleaning personal items. However, I consider that some of her claims are unreasonable (for example, a sensory pod and weighted blankets due to the personal needs of Ms Kearns and her son).

d) I accept that Ms Kearns incurred expenses in removing and disposing of some of her personal items (for example, skip bins).

1. Even though Mr and Mrs Phillips offered for her to vacate without any break lease costs on 17 June 2022, Ms Kearns chose to continue on with the tenancy in circumstances when it should have been clear to her that the likelihood of her being able to return to the property before the expiry of the Form 3 notice of termination, was remote. She should have considered applying to the Tribunal for an order terminating the tenancy or she should have accepted the offer of Mr and Mrs Phillips to terminate the tenancy early. I consider this was a failure to mitigate her loss.
2. I also consider that Ms Kearns took multiple actions from 3 May 2022 in relation to the issues at the property, without consultation with Mr and Mrs Phillips. If she had been more prepared to discuss the issues and whether or not there was a path to their resolution which was mutually acceptable, then the issue may have been resolved sooner one way or another. This was also a failure to mitigate her loss.
3. Taking into account all of the above factors, I consider that the following amounts of compensation should be payable to Ms Kearns in relation to this aspect of her claim:
   • Compensation for accommodation and meals $2,500.00
   • Replacement of personal items $3,000.00
   • Disposal of some personal items $500.00
   • Inconvenience generally $2,500.00.

This means that the total amount of compensation I would allow for this aspect of the claim (including the amount allowed for the reports of $4,170.00) would be $12,670.00.

Issue 3.3: The claim for compensation for Mr and Mrs Phillips' breach of her right to quiet enjoyment under section 65 RTA.

Were Mr and Mrs Phillips in breach of their obligation to provide Ms Kearns with quiet enjoyment of the property?

1. In summary, Ms Kearns submits that Mr and Mrs Phillips have acted in breach of her right to quiet enjoyment of the property in multiple ways:

a) By moving to live in the house next door[89] - this created a situation in which Ms Kearns was constantly on her guard, due to her fear of and intimidation by Mr and Mrs Phillips.[90]

b) By employing an agent to manage the tenancy, who was a personal friend of Mr and Mrs Phillips.[91]

1. By failing to employ qualified tradespeople to carry out repairs at the property, and by attempting to carry out those repairs themselves, Mr and Mrs Phillips had to attend at the property far more than would have been necessary if appropriately qualified tradespeople attended (particularly since Ms Kearns says that the repairs carried out by Mr and Mrs Phillips were often inadequate and therefore further repairs were required).[92]

d) By failing to provide proper notice of a time and date on which access would be required by Mr and Mrs Phillips.[93] As a result, Ms Kearns says that she was "on eggshells" for the first four years of the tenancy.[94] She says that she was required to constantly maintain the property at a level which would be suitable for an inspection, as at any moment, Mr and Mrs Phillips might attend at the property.[95]

e) Mr Phillips attending at the property to carry out garden maintenance without proper notice.[96]

f) Conduct which amounted to harassment when she was attempting to vacate the property.[97]

g) The attendance of the agent at the property on 12 August 2022 which was before she had vacated the property, and their removal of her security cameras.[98]

1. Ms Kearns lodged a schedule which identified 88 occasions during the tenancy on which she says that her right to quiet enjoyment was breached.
2. Mr and Mrs Phillips disagree and they have lodged their own schedule in response, which provides an explanation as to the reasons for each occasion Ms Kearns identifies her right to quiet enjoyment was breached.

Conclusions about whether or not Mr and Mrs Phillips were in breach of their obligation to provide Ms Kearns with quiet enjoyment of the property

1. Section 65 RTA states that a tenant is entitled to quiet enjoyment of the property without interruption by the landlord and the landlord will not cause or permit an interference with the reasonable peace, comfort or privacy of the tenant in the tenant's use of the premises.
2. If a landlord is in breach of a tenant's right to quiet enjoyment, then the tenant may apply to the Tribunal seeking an order for compensation. The same general principles apply to a claim for compensation on this basis, however, there is some case law which is specific to these particular claims.
3. In my view, there are two underlying principles that must be applied when dealing with any application about a claim that a person's right to quiet enjoyment has been breached:
   • The test to be applied is an objective test; and
   • The breach must be substantial.
4. In relation to the requirement of an objective test, in South Australian Housing Authority v Ivancic[99] I stated as follows:
   1. In deciding whether or not the tenant's quiet enjoyment of his property has been interfered with, I must apply an objective test.
5. This was the approach taken in South Australian Housing Trust v B[100] in which the Tribunal held that the 'requirement for peace, comfort or privacy is to be judged objectively by an external standard, and that external standard is the standard of reasonableness.
6. This was also the approach taken by his Honour Justice Parker (formerly President of SACAT) in the matter of Kingsley & Thorne v Living Choice Woodcroft Pty Ltd.[101]
7. In relation to the question of the breach being substantial, I refer to the following comments I made in Ivancic:
   1. It is clear that in claims by a tenant of a commercial tenancy for a breach of the tenant's right to quiet enjoyment, the tenant must establish that the breach is substantial in order to be successful.[102]
8. This approach has also been applied in residential tenancies. For example, in McC v Director of Housing (Residential Tenancies),[103] the Victorian Civil and Administrative Tribunal (VCAT) decided that bird noises, flood lighting and minor invasions of privacy by neighbours are mere inconveniences and did not amount to a breach of quiet enjoyment.[104] I consider this is the preferable approach.

1. There seems to have been some confusion in relation to this issue and it has been dealt with on the basis of a breach of the right to quiet enjoyment under section 65 RTA and also a breach of the obligations under section 72 RTA. This is not necessary. Any claim about a breach of the notice provisions under section 72 RTA amounts to a breach of section 65 RTA and should be dealt with in that manner.
2. In the original Order, the Tribunal found that Ms Kearns' right to quiet enjoyment had been breached by the actions of Mr and Mrs Phillips.
3. I have reviewed the schedules and in broad terms, the incidents can be categorised as follows:

a) attendances for retrieval of belongings of Mr and Mrs Phillips (approximately 16 occasions); > > b) attendances for maintenance (approximately 15 occasions); > > c) attendances for gardening (approximately 10 occasions); > > d) Mr and Mrs Phillips' mail being delivered to Ms Kearns' address (4 occasions); > > e) the agent attended at the end of the tenancy, under the mistaken belief that Ms Kearns had vacated the property and commenced taking down her security cameras.

4. I do not accept that merely residing next door, or choosing to employ an agent to manage the tenancy (or not to employ an agent to manage the tenancy), constitutes a breach of a tenant's right to quiet enjoyment. In addition, Ms Kearns has raised the following issues in the schedule, which do not constitute a breach of her right to quiet enjoyment:
   • requests for her to maintain the garden;
   • a request for her to pay a water bill; - a landlord is entitled to take action to enforce their rights. In addition, a request by Mr and Mrs Phillips for her to buy globes is not a breach of her right to quiet enjoyment - a tenant is to be expected to replace globes as they go, during a tenancy;
   • disruptive conduct at Mr and Mrs Phillips' property - this is not an issue which arises from the tenancy agreement. This is a police matter;
   • complaining when Mr and Mrs Phillips brought in her bin;
   • complaining when their dog strayed onto her driveway on one occasion.
5. In my assessment, over the course of the tenancy, Mr and Mrs Phillips have attended at the property or communicated with Ms Kearns on a far greater number of occasions than would usually occur.
6. For this reason, I agree with the determination in the original Order, that Mr and Mrs Phillips were in breach of Ms Kearns right to quiet enjoyment of the property. In particular, I consider that the number of visits to her property to retrieve their items was excessive, and I consider it is likely that if Mr and Mrs Phillips had used tradespeople rather than trying to carry out repairs themselves, then there would have been less attendances at the property.

Has Ms Kearns suffered loss or inconvenience arising from that breach?

1. I consider that Ms Kearns did suffer inconvenience as a result of this breach. She was required to provide access for Mr and Mrs Phillips on a significant number of occasions, for them to retrieve their items from the shed, and for them to conduct maintenance. This impacted on her privacy, and required her to accommodate the requests as far as possible. It also impacted on her ability to conduct her work from home.

Should Ms Kearns receive compensation for her inconvenience - if so, has she taken appropriate steps to mitigate her loss?[105]

1. In making an assessment as to the amount of compensation that should be payable, and in that regard, whether or not Ms Kearns has taken steps to mitigate her loss, I have taken into account the following factors:

a) I consider that a significant issue in relation to this aspect of the matter is a lack of clarity in the communications between the parties. In their schedule, at one stage, Mr and Mrs Phillips say that they had struck up a friendship with Ms Kearns. It seems that Ms Kearns took a different view. However, on multiple occasions, Mr and Mrs Phillips refer to Ms Kearns' emails and text messages to them being open-ended with comments such as "... no worries, any time is fine, I'm away until Sunday lunch".[106]

b) On one occasion, Ms Kearns tried to contain the behaviour of Mr and Mrs Phillips in attending at the property by requiring them to adhere to some guidelines, this did not result in the practical outcome she sought. I consider that the communications between the parties continued to be ambiguous after this.

c) It is unreasonable for Ms Kearns to submit that there was a power imbalance between her and Mr and Mrs Phillips; and she did not want to get them offside (as she was worried about being evicted), so she was "nice" or "kind" to them, and subsequently for her to bring an application for compensation for breach of her right to quiet enjoyment when her communications with Mr and Mrs Phillips were ambiguous.

1. In the original Order, the Tribunal allowed compensation of $2,000 for this aspect of the claim. I consider that was within the discretion of the Tribunal and it is reasonable in the circumstances.
2. In addition to her broad claim for compensation for breach of her right to quiet enjoyment of the property during the tenancy, Ms Kearns also claimed compensation for breach of that right at the end of the tenancy when she says the agents attended at the property on 10 August 2022 on the assumption that she had vacated (which was an incorrect assumption) and they took down her security cameras (and damaged them in the process).
3. In the original Order, the Tribunal found that there was insufficient evidence to support the claim, and so disallowed it.
4. I consider the conclusion in the original Order about this aspect of the matter is a reasonable one in relation to the damage to the security cameras, and I will not alter that.
5. However, I do consider there was a breach of Ms Kearns' right to quiet enjoyment when the agents let themselves into the property before she had vacated.
6. I will allow her compensation of $150 for this aspect of the claim.
7. This means that the total amount of compensation payable to Ms Kearns is $18,570.00 being:

Maintenance issues other then water leaks, damp and mould $2,000.00[107]

Water leaks damp and mould during the tenancy $1,700.00[108]

Water leaks damp and mould at the end of the tenancy $12,670.00[109]

Breach of quiet enjoyment during the tenancy $2,000.00[110]

Quiet enjoyment at the end of the tenancy $150.00[112]

1. I have found that Mr and Mrs Phillips were entitled to compensation of $3,520.00.

I have found that compensation of $18,570.00 is payable to Ms Kearns.

This means that on my assessment, compensation of $15,050.00 is payable to Ms Kearns. In these circumstances, I will allow the original Order (for compensation of $15,097.90) to remain in place.

Accordingly, I will affirm the decision under review (but for different reasons).

1. Although this matter is multi-faceted, the mould outbreak at the property is a significant aspect of Ms Kearns' claims. These matters are difficult. The following observations arise from this matter, but apply generally.

a) What constitutes reasonable condition at the commencement of a tenancy for the purposes of section 68 RTA, is determined by an objective test and the test takes into account the age, character and prospective age of the property at that point (and so a different standard will be expected of say, a newly constructed house, as opposed to a house which is 40 or 50 years old).

b) If a tenant claims that a property was not in a reasonable condition at the commencement of the tenancy, the issue is whether there was a defect in the premises which ought reasonably to have been apparent upon an inspection at that point.[113] It does not matter if the defect was not detected by the landlord or agent at the commencement of the tenancy and it does not matter whether or not the landlord or agent actually conducted an inspection at that point - the question is whether the defect ought reasonably to have been apparent upon an inspection of the property at the commencement of the tenancy. It also does not matter whether or not the tenant was aware of the defect. It is not necessary for an inspection to have been conducted by an expert.[114]

c) In most properties which are not new, it is to be expected that there will be some damp and mould. This does not mean that the property is not reasonably clean within the meaning of section 67 RTA and it does not mean that the property is not in a reasonable condition at the commencement of a tenancy within the meaning of section 68 RTA.

d) Once the tenancy has commenced, the landlord is not responsible for defects which arise subsequently unless the landlord is aware of the defect or ought to be aware of the defect and this is a different standard from that which applies at the commencement of the tenancy (Varricchio v Wentzel at paras 54 - 56). Once notified of the defect (and assuming the defect does not arise from the negligent or intentional actions of the tenant), the landlord will be in breach of the obligation if it is established that the landlord failed to act with reasonable diligence to repair the defect.

e) The maintenance of a property during a tenancy should be a shared responsibility between the landlord and the tenant. The tenant should be responsible for routine or minor maintenance such as the replacement of light globes which are easily accessible, and the removal of small amounts of mould (for example, where such outbreaks are manageable with vinegar). A landlord should be responsible for significant maintenance or the repair of defects. That will include repairs to leaks and it is likely to also include the remedial work for a significant outbreak of mould.

f) The tenant is responsible to promptly report any defect which occurs at the property (not caused by the tenant). If the landlord does not address the defect within a reasonable time, or any repairs are inadequate, then the tenant should follow up and make a subsequent report. If the landlord still fails to address the defect within a reasonable time, or the repairs are inadequate, then the tenant may arrange for the repairs to be carried out by an appropriately qualified tradesperson and seek reimbursement from the landlord (subject to meeting the requirements of section 68(3) RTA). Alternatively, they can make an application to the Tribunal.

g) It is relatively common in these matters for an issue with damp and mould to arise due to leaks at the property. The occasional leak (for example water coming through a window in extreme weather conditions), may not constitute a defect. However, where there are leaks occurring on a reasonably regular basis, a landlord would be well advised to take the matter seriously. A landlord should consider arranging for a contractor with particular expertise to address any such issue, rather than trying to undertake the repair themselves.

h) A landlord would be well advised to conduct routine inspections at a property, particularly if a tenant has been making reports of defects. The inspection may reveal that repairs have not been carried out adequately, or there is an issue which requires their attention.

1. Mould occurs naturally and is present in the atmosphere. People have different tolerance levels for mould. Because the test for a landlord's breach of their obligations under the RTA is an objective one, if a tenant has a particular susceptibility to mould, that is not an issue which is taken into account in determining whether or not the landlord is in breach of their obligations under the RTA in relation to the condition of the property.

j) However, if a tenant develops health issues which are likely to be attributable to mould at a property, and it appears that the tenant is particularly susceptible to mould, then there are other options for a tenant: for example, the tenant could bring an application to the Tribunal seeking an order terminating the tenancy on the grounds of hardship.[115] In those matters, the Tribunal may take into account the particular situation of a tenant.

k) If there is a significant outbreak of mould at the property, and a tenant's view is that the outbreak is attributable to the landlord's breach, then the tenant would be well advised to take stock of their options, and consider whether they may be better off vacating or whether they wish to remain.

1. If the tenant wishes to remain, then they need to agree on a course of action with the landlord. If they are able to agree that it is realistic for the tenant to remain in the property on a long term basis, it may be better for the tenant to vacate temporarily while remediation is undertaken and if this is the case, it would probably be reasonable for the tenant's rent to be waived during that period. If the parties are unable to agree, then the tenant should consider bringing an application to the Tribunal. The application in the Tribunal can seek orders for repairs and compensation (assuming the Tribunal determines that it is reasonable for the tenancy to continue). Any application in the Tribunal must be supported by evidence. The best evidence will be a report from an expert to establish that there are levels of mould at the property which are unacceptably high (and the expert should be available to give evidence in a Tribunal hearing).

m) If the tenant decides they need to vacate, then it is preferable not to do so either without either the landlord's approval, or a Tribunal order because that would mean that they are still liable to the landlord under the tenancy agreement. If the matter is urgent - for example, the tenant considers the property is uninhabitable, then the tenant should consider serving a notice to the effect that the tenancy has been frustrated. If the parties are still unable to agree on a resolution, then the tenant can bring an urgent application in the Tribunal.

n) There are also options available to the landlord where there has been a mould outbreak at their rental property. If the landlord considers that the property has become uninhabitable, then the landlord may serve a notice of termination on the basis of frustration. If the landlord requires extensive access to the property for remediation works to be undertaken, and those works cannot be undertaken with a tenant present, then the landlord should consider serving a notice of termination. If there is such disagreement between the parties as to the way forward, then the landlord can bring an application to the Tribunal seeking an order to terminate the tenancy on the grounds of hardship.

o) When such a dispute is brought to the Tribunal, the Tribunal may or may not require a landlord to undertake particular remediation work, depending on the circumstances. If remediation is required, or if the landlord's position is that the mould outbreak is not serious (or it has been remedied), then the landlord should be prepared to produce evidence in support of that position. This will require the report of an expert. The expert should be available to give evidence in a Tribunal hearing.

p) Merely because a tenant has suffered loss or inconvenience arising from maintenance issues at a property during a tenancy, does not necessarily entitle them to compensation from the landlord. A tenant is only entitled to compensation where the loss or inconvenience arises from the landlord's breach of their obligations under the RTA or the tenancy agreement. The Tribunal does not have power to make orders for compensation on any other grounds (section 110(1)(c) RTA). The Tribunal does not have power to make orders for compensation for personal injury (which includes for example, stress - section 110(2) RTA).

q) In dealing with a claim by a tenant on the basis of a landlord's breach, the Tribunal will not allow a landlord to rely on a tenant's communications to the effect that any defects at the property are "ok" - the parties cannot contract out of their obligations under the RTA (section 115 RTA), however, this issue may be relevant to the question of compensation (particularly the issue of mitigation of loss).

r) When making a claim based on a landlord's breach of their obligations under section 68A RTA, a tenant would be well advised to avoid claims about very minor issues - such issues may not constitute a defect, or any inconvenience arising is unlikely to warrant compensation. They also need to be aware of their duty to mitigate their loss which is relevant for example, if a tenant does not seek to enforce their rights for some time after an event which has occurred on which they seek to rely.

s) Finally, in any matter involving a claim for compensation in relation to a claim about mould, both parties should notify their insurers. These matters can be costly, and at least part of that cost may be covered by insurance.

1. The Tribunal grants leave to apply for internal review.

2. The Tribunal affirms the decision under review.

[1] This was Ms Kearns' application against Mr and Mrs Phillips.

[2] This was Mr and Mrs Phillips' application against Ms Kearns.

[3] Page 78 of her submission lodged on 12 July 2024.

[4] See for example, page 137 of transcript of the 8 November hearing

[5] See for example paragraphs 96, 202 and 204 of the original Order.

[6] See: Re AKS [2016] SACAT 19.

[7] Page 49 of her submission lodged on 12 July 2024.

[8] Battersby & Battersby v Thapa & Thapa [2017] SACAT 7 at para 20.

[9] Pett & Pett v Polglase [2019] SACAT 2 at [41]; Rossiter v Hosking & Anor [2021] SACAT 31 at [34].

[10] Page 70 of her Internal Review submission.

[11] Tronnolone v Edwards and Bryan [2016] SACAT 27.

[12] JRL v Williams & Williams [2017] SACAT 15 at [23].

[13] Page 156 of transcript of the 8 November hearing.

[14] See: Schedule of damages and receipts - page 11 of her documents.

[15] Page 11 of transcript of the 8 November hearing.

[16] At paragraphs 44 - 48 of the original Order.

[17] See: the Consumer and Business Services website.

[18] Paragraph 58 of the original Order.

[19] See page 3 of her submission lodged on 12 July 2024.

[21] Varricchio v Wentzel [2016] SASC 86 at [47].

[23] Tronnolone v Edwards and Bryan [2016] SACAT 27.

[24] [2016] SASC 86 at [46] - [47].

1. [25] For example, light fixture issue in bedroom 1, and the light issues in the other bedrooms (see: Mr and Mrs Phillips' repairs schedule); the carpet in bedroom 3; the rust on the laundry trough; the puratap being outdated and the filter not being changed; light globes - unless they are placed so high that a tenant could not reasonably replace them; the bathroom mirror rusty and corroded; the issues with the pavers, the safety switch, the painted fence, the shed not being sealed, the door to bedroom 1 (see: page 4 of Mr and Mrs Phillips' repairs schedule), the blinds for bedrooms 2 and 3 were installed at the commencement of the tenancy - see the receipt from Blind Sensations, dated 9 June 2015.
2. [26] For example, issues with door handles, the mislabelling of taps, in some cases, the issues with blinds, the pavers.
3. [27] For example, the birdbath, screen door locking itself, the washing line, leaking taps, the internal laundry door not latching, the issues with the gates, the shed door not shutting, the issue with the café blinds, the plug getting stuck in the vanity unit, the wood above the dishwasher, the blinds in bedroom 1 - see Ms Kearns' email of 20 November 2018.

[28] Pages 58 - 61 of transcript of the 8 November hearing and see page 4 of Mr and Mrs Phillips' repairs schedule.

[29] Page 259 of transcript of the 8 November hearing.

[30] Page 72 of transcript of the 8 November hearing and page 2 of Mr and Mrs' Phillips' repairs schedule.

[31] Pages 70 - 71 of transcript of the 8November hearing and see page 3 of Mr and Mrs Phillips' repairs schedule.

1. [32] Page 78 of transcript of the 8 November hearing and see page 4 of Mr and Mrs Phillips' repairs schedule and plumber receipts dated 17 September 2015 and24 May 2019.

[33] See: page 4 of Mr and Mrs Phillips' repairs schedule.

[34] Page 42 and 60 of transcript of the 8 November hearing.

1. [35] See: page 2 and 5 of Mr and Mrs Phillips' repair scheduleand page 86 of transcript of the 8 November hearing.

[36] Page 100 of transcript of the 8 November hearing and see page 5 of Mr and Mrs Phillips' repairs schedule.

1. [37] Page 73 - 74 of transcript of the 8 November hearing and see page 3 and 5 of Mr and Mrs Phillips' repairs schedule.
2. [38] The ingoing inspection sheets state the roller door is working, and see page 3 of Mr and Mrs Phillips' repairs schedule.

[39] See: section 68 notice of 17 October 2019.

[40] See: page 4 of Mr and Mrs Phillips' repairs schedule and the ingoing inspection sheets.

[41] See: Ms Kearn's email of 20 November 2018.

[42] Page 55 of transcript of the 8 November hearing and section 68 notice of 30 March 2021

[43] See: section 68 notice of 30 March 2021.

[44] See: Ms Kearns' repairs schedule and page 208 of her book of documents.

[45] Page 73 of transcript of the 8 November hearing and section 68 notice of 5 May 2020.

[46] Page 84 and 95 of transcript of the 8 November hearing.

[47] Page 103-104 of transcript of the 8 November hearing.

[48] Page 111 of transcript of the 8November hearing.

[49] Page 114 of transcript of the 8November hearing.

[50] Page 21 of transcript of the 8 November hearing.

[51] See: Ms Kearn's email of 18 November 2018.

[52] Per Justice Parker's decision in Tronnolone v Edwards & Bryan [2016] SACAT 27.

1. [54] This was the approach taken in Varricchio v Wentzel and confirmed by Parker J in Tronnolone v Edwards & Bryan (at [17]).
2. [55] I observe here that in the original proceedings, there seems to have been some confusion concerning the basis on which a claim for compensation should be made - and there was a discussion about calculations to be made on the basis of a proportion of the house - I disagree with that approach.
3. [56] Some of the defects of which Ms Kearns has complained, arose at the commencement of the tenancy or in the early years (2017/2018). Ms Kearns remained in the property until 2022.

[57] Although in the review hearing, Ms Kearns said that she herself is a landlord.

[58] See: for example, page 36 of transcript of the 27 September hearing.

[59] See: for example, page 57 of transcript of the 27 September hearing.

[61] Page 399 of her book of documents.

[62] Page 18 of transcript of the 8 November hearing.

[63] At page 171 of the transcript of the 8 November hearing.

[64] Page 1 of her repairs schedule and pages 174 and 184 of transcript of the 8 November hearing.

[65] Page 2 of Mr and Mrs Phillips' repairs schedule.

[66] Page 2 of Mr and Mrs Phillips' repairs schedule.

[67] Pages 187 - 191 of transcript of the 8 November hearing.

[68] Page 3 of Mr and Mrs Phillips' repairs schedule.

[69] Page 1 of Mr and Mrs Phillips' repairs schedule.

[70] Pages 162 - 164 of transcript of the 8 November hearing.

[72] See page 14 of Jim's Building Inspection report of 11 May 2022.

[73] See Varricchio v Wentzel [2016] SASC 86 at para 48.

[74] See page 11 of Jim's Building Inspection report of 11 May 2022.

[78] See: email of 7 May 2019 from Mr Phillips to Ms Kearns.

[79] This is supported by the report of the building biologist.

[80] Page 11 of her Internal Review submission.

[81] Page 24 of her Internal Review submission.

[82] Ms Kearns' email of 20 November 2018.

[83] Ms Kearns' email of 20 November 2018.

1. [84] Some of the defects of which Ms Kearns has complained, arose at the commencement of the tenancy or in the early years (2017/2018). Ms Kearns remained in the property until 2022.

[88] Page 37 of her original folder of documents.

[89] Page 33 of her Internal Review submission.

[90] Page 50 of her Internal Review submission.

[91] Page 33 of her Internal Review submission.

[92] Page 11 of her Internal Review submission.

[93] Page 13 of her Internal Review submission.

[94] Page 56 of her Internal Review submission.

[95] Page 56 of her Internal Review submission.

[96] Page 37 of her Internal Review submission.

[97] Page 42 of her Internal Review submission.

[98] Page 64 of her Internal Review submission.

[99] [2020] SACAT 115.

[100] [2005] SARTT 5.

1. [101] [2017] SACAT 16 - which dealt with an application by residents in a retirement village against the operator of the retirement village on the basis that the operator of the retirement village was in breach of their obligation to provide quiet enjoyment of their respective properties to the residents, due to the noise of other residents at social gatherings.
2. [102] Aussie Traveller Pty Ltd v Marklea Pty Ltd (1997) QA 2, 11 - 16; Martins Camera Corner Pty ltd v Hotel Mayfair Ltd (1976) 2 NSWLR 15, 23.

[103] [2009] VCAT 2748.

[104] Clarke v Director of Housing (Residential Tenancies) [2017] VCAT 1413.

[105] In this context I regard a tenant's obligation as an obligation to minimise their inconvenience.

[113] Varricchio v Wentzel [2016] SASC 86 at [47].

[114] Jones v Bartlett [2000] HCA 56; (2000) 176 ALR 137.