Keith Bannister v David and Mariam Cheung

NCAT Consumer and Commercial|2014-05-12

BACKGROUND 1The proceedings involve a claim for compensation by Mr Bannister ('the tenant') against Mr and Ms Cheung ('the landlord') in respect of alleged breach by the landlord of its obligations under Sections 52 and 63 of the Residential Tenancies Act 2010 ('the RTA'). The landlord brought a cross application against the tenant for payment of the bond under Section 175 of the Act, as a result of the tenant's alleged unlawful early termination of the lease. 2The tenant's proceedings were filed on 21 February 2014. The landlord's proceedings were filed on 24 March 2014. The Tribunal made interlocutory orders that each party file and serve evidence; and that both sets of proceedings be heard together. The hearing took place at the Tribunal in Sydney on 12 May 2014. The tenant and his wife appeared. Ms Cosic and Mr Carmarda, property managers, appeared as agent of the landlord. The tenant called an expert witness, Ms Penny Tralau, of 'Mould Rescue'. The respective witnesses gave sworn evidence and were cross examined. 3There is no dispute that the parties entered into a written residential tenancy agreement for a fixed term of 6 months on 2 January 2014 for the tenant to rent a townhouse at Marsfield NSW. The premises had been inspected by Ms Bannister on 21 December 2013. The tenant and his family moved out of the premises on 25 January 2014, and gave vacant possession to the landlord by returning the keys to the agent on 7 February 2014. The gravamen of the dispute is that the tenant alleges that there were significant mould problems affecting the health of his family (in particular, Ms Bannister) and that the landlord had failed to adequately respond to requests by the tenant to repair the premises (in particular, to repair a bathroom vanity which had a leaking u-bend pipe, causing mould to accumulate on the shelf of the vanity unit). The landlord denies any breach of its obligations, and alleges an entitlement to a 'break lease' fee because the tenant abandoned the premises.

JURISDICTION 4The Tribunal clearly has jurisdiction in this matter. Further, both the tenant's application and the landlord's application have been filed within the relevant limitation period in Regulation 22 of the Residential Tenancies Regulation 2010.

TENANT'S CLAIM 5The tenant claims over $13,000.00 in compensation from the landlord. The tenant's claims are set out at page 9 of the written materials filled by the tenant. The claim can be summarised as follows: a) Medical Expenses/Medical Reports $304.70 b)Moving Expenses $1,073.45 c)Mould Investigation/Reports $568.18 d)Laundry and Cleaning Expenses $520.70 e)'Remediation' of Household Contents $4,408.00 f)Connection/Reconnection Fees for Utilities $200.00 g)'Cost of Time' $4,127.00 h) Refund of all rent paid $2,880.00 i) Refund of whole bond $1,920.00

6The defendant's claim for "remediation" of household contents involves cost of replacing mattresses, furniture, mats, which the tenant alleges were contaminated by mould and were disposed of after the tenant vacated the premises. The tenants allege that such items were placed in storage, and then subsequently disposed of in a Council pick up. The tenant claims such furniture/belongings were contaminated by mould based on reports of Mould Rescue dated 13 February 2014 (by Ms Tralau), and the report of NSJ Enviro Sciences Pty Limited trading as MouldLab (Mr David Lark) dated February 2014.

TENANT'S DOCUMENTARY EVIDENCE 7The tenants documentary evidence consisted of the following:- (a)Chronology; (b)Text messages between Mr Bannister and the manager (Ms Cosic); (c)"File notes" made by Ms Bannister of conversations; meetings; text messages between herself; Ms Cosic; former tenant of the property and the subsequent tenant of the property; (d)An application by the tenant to rent the property dated 21 December 2013. (e)Report of Mould Rescue (Ms Penny Tralau) dated 13 February 2014; (f)Report of NSJ Enviro Sciences Pty Limited trading as MouldLab (David Lark) dated February 2014; (g)Ingoing condition report which Ms Bannister signed on 25 January 2014; (h)The written "termination notice" by the tenant dated 7 February 2014; (i)Copy of the Residential Tenancy Agreement; (j)"Timesheet" in respect of the time the tenant and Ms Bannister allegedly spent on various activities, including moving out of the premises and attending medical appointments; (k)Medical report of Dr Tonkin (GP) dated February 2014; (l)Medical report of Dr Hoile (GP) dated 3 February 2014; (m)Medical report of Dr Baumgart (Consultant Physician Immunology) dated 4 February 2014; (n)Witness statement of Keith Bannister dated 16 March 2014; (o)Witness statement of Michelle Bannister dated 17 March 2014; (p)A "travel and accommodation" lodge; (q)Statement of the previous tenant of the property dated 16 March 2014' (r)Copies of emails between Ms Bannister and Ms Cosic; (s)Emails from the tenant to the Tribunal; (t)Email from Ms Bannister's mother, Ms Wynyard dated 16 March 2014; (u)Copies of various receipts relating to living expenses; placement of furniture/belongings; (v)A report and quote from Mould Rescue dated 28 February 2014 "mediation of contents from a severely mould effected house" in the sum of $5,940.00; (w)Photos of the premises. 8The tenant's documents comprised of 156 pages of material. The Tribunal has read and carefully considered such documents. 9At the hearing, the tenant attempted to tender photographs of mattresses, furniture, and mats. According to the tenant such belongings were placed in storage after he and his family vacated the premises, and finally disposed of in April 2014. However, the photographs had not been filed and served in accordance with the Tribunal directions, and the landlord opposed the photographs being tendered as evidence. The Tribunal did not admit the photographs.

LEGAL PRINCIPLES 10The tenant alleges that the landlord has breached its obligations under Sections 52 and 63 of the Act. 11Relatively, the provisions state as follows:- "52 Landlord's General Obligations for Residential Premises (1)The landlord must provide the residential premises in a reasonable state of cleanliness and fit for habitation by the tenant. 63 Landlord's General Obligation (1)A landlord must provide and maintain the residential premises in a reasonable state of repair, having regard to the age, rent payable for and prospective life of the premises. (2)The landlord's obligation to provide and maintain the residential premises in a reasonable state of repair applies even though the tenant had notice of the state of disrepair before entering into the occupation of the residential premises. (3)The landlord is not in breach of the obligation to provide and maintain the residential premises in a reasonable state of repair if the state of disrepair is caused by the tenant's breach of this Part. ..." 12Pursuant to Section 65 of the Act, the tenant may apply to the Tribunal for an order that the landlord carry out repairs, or an order that the landlord reimburse the tenant the amount for urgent repairs carried out by the tenant. Under Section 65(2), the Tribunal only make an order regarding repairs "...if it determines that the landlord has breached the obligation under this Act to maintain the residential premises in a reasonable state of repair, having regard to the age of, rent payable for and prospective life of the premises". 13Section 65(3) of the Act states as follows:- "65 Tenant Remedies for Repairs ... (3) The Tribunal must not determine that a landlord has breached the obligation unless it is satisfied that:- (a)the landlord had notice of the need for the repair or ought reasonably to have known of the need for the repair, and (b)the landlord failed to act with reasonable diligence to have the repair carried out". 14Under Sections 98 and 103 of the Act, the tenant may apply to the Tribunal for early termination of fixed term residential tenancy agreement if the landlord has breached the residential tenancy agreement, and the Tribunal is satisfied in the circumstances of the case, the breach is sufficient to justify termination of the agreement. Prior to the termination of a residential tenancy agreement, the tenant may also apply to the Tribunal to order the landlord to repair the premises under Section 187 of the Act. 15Clause 41 of the standard form residential tenancy agreement in Schedule 1 of the Residential Tenancies Regulations 2010 stipulates that a tenant who unlawfully terminates a residential tenancy agreement before the end of the fixed term pay a break fee of 4 or 6 weeks depending upon how early the fixed term agreement has been broken. Such an agreement was signed by the parties in this matter. 16In respect of "fit for habitation", Aitken L.J. stated in Summers v Salford Corporation [1943] AC 283: "If the state of the repair of the house is such that by ordinary use damage may naturally be caused to the occupier either in respect of personal injury to life or limb or injury to health, then the house is not in all respects fit for habitation...it is clear that premises may be unfit for human habitation even though it is physically possible for a tenant to reside in the premises". 17In Gray v Queensland Housing Commission [2004] QSC 276, Chesterman J reviewed the authorities regarding whether premises were reasonably fit for habitation, and stated as follows (at [11]): "The test approved by the House of Lords may be paraphrased: if the state of repair is such that injury is to be expected, or will naturally occur, from the ordinary use of the premises they cannot be regarded as fit for human habitation". 18In Hampel v South Australian Housing Trust [2007] SADC 64, Milsteed J stated (at [63]): "In my opinion, a house is unfit for human habitation if an occupier could be expected to suffer physical injury or injury to health from the ordinary use of the premises. It may be so unfit for any reason. The risk to health or safety may arise because the premises are in a state of disrepair or dilapidation or because of a lack of facilities such as the provision of adequate water, light, ventilation, and so on." 19In McLeish v FT Eastment & Sons Pty Limited [1970] 2 NSWR 282, 91WN (NSW) 268, the New South Wales Court of Appeal described the terms "reasonable state of repair" and "fit for habitation" in the following manner (citing Proudfoot v Hart (1890) 25 QBD 42):- "Must import such a state as to repair that the premises might be used and dwelt in, not only for safety, but for reasonable comfort, by the class of persons by whom and for the sort of premises for which, they were to be occupied...The conclusion I draw...is that the landlord is obliged to hand the premises over to the tenant, at the commencement of the lease, in a reasonable state of repair having regard to its age, rent payable and prospective life of the premises, and the state of repair must at least meet the minimum standard inherit in the contemporary understanding of the term "fit for habitation". 20The test of "fit for habitation" is objective, rather than subjective. Residential premises may be unfit for habitation, even if the landlord is unaware of the defect. However, in De Solei v Palmhide Pty Limited [2010] NSWCTTT 464, the Tribunal noted that the test of proving that premises were not fit for habitation was a difficult one for a tenant to satisfy and a finding that premises are not fit for habitation is not to be lightly made. Further, there is no breach of the landlord's obligation to repair premises under Section 63 of the Act (as distinct from an obligation to provide remises at the commencement of the tenancy which are reasonably clean and fit for human habitation under Section 52 of the Act) unless the landlord is aware (or should reasonably be aware) of the need for repairs, and fails to act in a reasonably timely manner to conduct such repairs (or does not conduct adequate repairs: Northern Sandblasting Pty Limited v Harris (1997) 188 CLR 313 at 370-371; Jones v Bartlett (2000) 205 CLR 166 per Gleeson CJ at 176 and Callinan J at 239; Sakaua v Williams [2005] NSWCA 405) 21There has been a number of decisions of the Tribunal which have found that premises have been so affected by mould that premises have not been fit for habitation (e.g.: Roberts v Bell [2001] NSWRT 6; Finn v Finarto [2004] NSWCTTT 179; Bartley and Zawiolkowski v Harris Park Holdings Pty Limited [2010] NSWCTTT 592). In such cases, there was evidence of significant mould in the premises and the mould problems had not been addressed by the landlord over a period of time. 22If the tenant establishes breach by the landlord of the landlord's obligations under Sections 54 and/or 62 of the Act, the landlord will not be liable for compensation or damages if the tenant has not taken all reasonable measures to mitigate his loss (British Westinghouse Electric and Manufacturing Company Limited v Underground Electric Railways Company of London Limited [1912] AC 673; BM & JA Holdings Pty Limited v Clarence Street Developments Pty Limited [2012] NSWSC 1236). The landlord bears the onus of prove in respect of the issue of failure to mitigate.

EVIDENCE OF MR BANNISTER 23Mr Bannister relied upon a five page witness statement dated 16 March 2014, which he elaborated upon in oral evidence. The lease was signed on 24 December 2013, after Ms Bannister had expected the property on 21 December 2013. The family moved into the premises on 2 January 2014. Mr Bannister stated that when unpacking, he opened the doors to the bathroom vanity and found a plastic takeaway food container underneath the u-bend pipe in the vanity filled with water from a leak in the u-bend. Mr Bannister stated that within a few days of moving in, he "noticed vapour in the bathroom" after having a shower. Because the premises were "hot" at night, the family used fans in each of the bedrooms and downstairs living room. 24On 9 January 2014 (a week after moving into the property) Mr Bannister and two of his children went on a camping holiday. Mrs Bannister, and the family's youngest child, left the residential premises on 10 January 2014 to attend the holiday. The family returned together on 15 January 2014. 25On the afternoon of Saturday 25 January 2014, Mr Bannister asserts that his wife spoke to him and said that she had been feeling "really unwell" for "the past few weeks". She had not mentioned feeling unwell previously. He stated that his wife informed him that she had "been having trouble putting sentences together, walking into rooms and forgetting why she was there, tightness in her chest and general uneasiness". Mr Bannister stated that his wife told him that she had, that morning, performed a "Google search" and believed her symptoms may be attributable to mould. He stated that his wife informed him that her symptoms had been "much less severe" when the family was on holiday, and she wanted to leave the house to see whether her symptoms improved. 26That evening, the family moved in with friends. On 28 January 2014, Ms Bannister attended a general practitioner. On 4 February 2014, Ms Bannister was examined by Dr Baumgart, consultant physician in clinical immunology and allergy. 27Mr Bannister stated that "by about 3 February 2014" he and his family had "resolved to move out" of the property. On 7 February 2014, the remainder of the family's belongings were removed from the house. Mr Bannister wrote a "termination notice" addressed to the agent which his wife delivered with the keys to the property to the agent, on the afternoon of 7 February 2014. 28The "termination notice" asserts that Mr Bannister and his family, since moving into the property on 2 January 2014, had "been suffering numerous health issues including sore eyes, chest tightness, coated tongue, poor concentration, difficulty sleeping and disorientation". He stated that the "dwelling is unusable and unliveable and the mould cannot be completely eradicated by simple cleaning or leaving the windows open". He stated that the tenants had obtained "a mould inspection by a professional mould inspection service" and the mould inspection service had "advised us that there was structural damp in the bathroom wall". Mr Bannister stated that the landlord had "not addressed" issues which the tenants had raised on 9 January 2014 (leaking u-bend in bathroom, mouldy vanity in bathroom, leaking shower) and "denied our written request for an exhaust fan and ignored our verbal request to investigate the cause of the mould around the bedroom windows". Mr Bannister stated that the premises were now "vacant and clean (expect for the mould, which we will not clean due to the effect on our health)". He demanded that the landlord refund monies (all rent paid and the bond) and pay certain expenses within 21 days, otherwise proceedings would be commenced at NCAT. 29Mr Bannister stated that he and his children experienced some symptoms whilst living in the property, including sore eyes. However, he stated that it was his wife who had suffered the most significant symptoms. Based upon the information in the text messages and conversations between Ms Bannister and Ms Cosic, the Tribunal asked Mr Bannister as to why, if his family were suffering from significant health problems in the period between 2 January 2014 and 9 January 2014; and 15 January 2014 to 25 January 2014; he had not emailed, spoken to, or sent text messages to Ms Cosic regarding the condition of the premises? 30According to Mr Bannister, he did not speak or write to the property manager about the condition of the premises during this period as he was "very busy" at work; it had been Ms Bannister who conducted the dealings with the property manager; and he "didn't think there was any point" as the manager had failed to respond to requests to repair and clean the premises. Mr Bannister confirmed that his symptoms were very minor. 31Mr Bannister asserted that he and his wife had put their mattresses, bedding, furniture and belongings in storage after leaving the premises because they were "contaminated by mould" and such items were eventually disposed in a Council pickup.

EVIDENCE OF MS BANNISTER 32Ms Bannister provided the Tribunal with an 8 page written statement, various "file notes" she had made from her recollection of conversations with Ms Cosic; and copies of and text messages. She elaborated upon this evidence at the Tribunal. 33Ms Bannister stated that when she went to move the family's things into the property, she "noticed a musky smell". She noted that "over the course of the first week of being in the property" she noticed things that required repair and maintenance. Ms Bannister stated that she did not report the problems "immediately" because she thought the property manager was to attend the property and perform he ingoing inspection report "any day". She stated that she "began writing down" issues, including the "mouldy damp" vanity unit and "black mould" growing around the bedroom windows and starting to grow on curtains in the bedroom. She stated that she noticed a "large water stain on hallway ceiling" and various other issues, including "large hammering and screaking sounds from the taps" and "garage door that did not lock". 34Ms Bannister stated that she contacted the property manager (Ms Cosic) on 9 January 2014 to "advise of the maintenance issues" and sent a text message "requesting the items requiring repair". 35Notably, in respect to the text message sent by Ms Bannister to Ms Cosic on 9 January 2014, there is a request a plumber be sent to "look into a leaking pipe under the bathroom wash basin and loud hammering sound from taps in the same unit and dripping tap in the shower. The leaking pipe has leaked through the wood in the bathroom unit causing mould. These issues were there when we moved in. I am in until 2pm tomorrow and then away until Wednesday evening next week". The next mention of mould in the text message (and in respect to the file note regarding the conversation with Ms Cosic) is to mould in the bathroom vanity unit. There is nothing to indicate that the property manager, at that stage, advised of any mould on the curtains or windows; nor of any ventilation problems in the premises; nor health issues of the occupants. 36On 10 January 2014, Ms Cosic attended the residential premises to conduct the ingoing inspection report. According to Ms Bannister, she orally informed Ms Cosic of the condition of the premises, including mould on the bedroom windows and mould starting to grow on curtains. She states that she also pointed out mould in the vanity unit, and that the u-bend pipe in the vanity unit needed to be repaired. She noted that Ms Cosic agreed to "send a plumber (and) a tradesman to fix the garage door lock"; and "replace the vanity". 37Ms Bannister and her family returned from holidays on 15 January 2014. The next interaction between Ms Bannister and Ms Cosic was a text message from Ms Bannister on 22 January 2014 inquiring when a plumber would attend the property, and stating that "the vanity needs to be replaced as it has gone badly mouldy". Ms Cosic texted back that she would "follow up tomorrow". On 24 January 2014 there was a further text interaction between Ms Bannister and Ms Cosic regarding when the "plumber and garage door person would be attending". On 25 January 2014, after not being contacted by tradesperson, Ms Bannister sent a text to Ms Cosic. Ms Cosic respondent that "these tradespersons are killing me", and giving the details of the plumber ("Abraham") and handyman ("Normie", in respect of repair to the garage lock) and asking Ms Bannister to contact the tradespersons to arrange a suitable time. 38On 25 January 2014, Ms Bannister emailed the ingoing inspection report to Ms Cosic. The ingoing inspection report completed by Ms Bannister referred to "black mould around windows and curtains" and "bathroom cabinet wet and smells very mouldy from broken pipe" as well as "broken pipe" in the kitchen vanity; "water stain on hall ceiling", and various other issues. 39As discussed above, Ms Bannister and her family moved out of the property on 25 January 2014. On 28 January 2014, Ms Bannister sent Ms Cosic a text stating that "we needed to move out of the property on the weekend because of the growing mould issue". She stated that she had spoken to the plumber and handyman "to get these things fixed ASAP" but was informed that they needed to speak to the property manager to get work approved. After sending the text, Ms Bannister stated that she called Ms Cosic and informed her of the "health issues" her family had encountered allegedly due to mould, being "sore eyes"; "tightness of chest" and "cognitive issues". Ms Bannister stated that she informed Ms Cosic that the family would not move back until the property was repaired. According to Ms Bannister, Ms Cosic stated that she would arrange a cleaner; get the repairs approved by the landlord, and contact the strata manager to find out if there was any leak issue causing the mould. 40On 31 January 2014, there was a text message exchange between Ms Bannister and Ms Cosic. Ms Bannister stated that she had been informed by "Abraham" the plumber that the landlord had rejected his quote, and he would not be doing repair work. Ms Bannister informed Ms Cosic she had been back to the property and noticed a "leak coming out of the house near the gate". She requested Ms Cosic ask "strata" to look at the leak. Ms Bannister asked when the "strata plumbers" would be looking at the property, as "we are still not able to return to the house until the mould issues are resolved". 41After the texts were sent on 31 January 2014, Ms Bannister stated she had two telephone conversations with Ms Cosic. Ms Bannister raised the issue of the tenants terminating the lease without penalty. She stated Ms Cosic informed her that the position of the landlords was that the mould in the property was likely due to the tenants not leaving the widows open enough, and that if the tenants broke the lease, the landlord would likely seek compensation by way of a 6 week 'break lease' fee. 42On 1 February 2014, Ms Cosic and Ms Bannister had a meeting at the residential property. It is unclear from the evidence who requested the meeting. Ms Bannister stated that she showed Ms Cosic the mould around the bedroom windows; bedroom curtains; bathroom cabinet; and widows. Ms Bannister stated that Ms Cosic informed her to clean the mould using vinegar and methylated spirits. Ms Bannister replied that "we have been advised not to" and "it's not our responsibility" because the mould was there "when we started the tenancy". Ms Cosic agreed to send a cleaner to the premises to clean the mould. Ms Bannister asked about the repairs requested. Ms Cosic stated the previous quotes were "too high", but that she had ordered a new vanity unit for $900.00, which would be delivered "next week". According to Ms Bannister, Ms Cosic stated that a second plumber would be sent and the strata manager contacted. Ms Cosic stated that "everything would be fixed" by "the end of next week". Ms Bannister inquired about the installation of an exhaust fan in the bathroom, and was informed by Ms Cosic the landlord had decided not to install a fan (the property having been let without an exhaust fan). Ms Bannister again asked whether the lease could be broken without penalty. Ms Cosic stated she would ask her manager and the landlord. 43On 3 February 2014, Ms Bannister saw two General Practitioners, Dr Tonkin and Dr Hoile. Dr Hoile referred Ms Bannister to Dr Baumgart, who she saw on 4 February 2014. The 'file notes' of Ms Bannister show that a cleaner had been booked to clean the premises (arranged by the agent) on 4 February 2014, but Ms Bannister contacted the cleaner to postpone the appointment as she had a medical appointment on 4 February 2014. 44On 5 February 2014, Ms Tralau, of 'Mould Rescue' attended the property and performed tests. Her opinion and evidence is discussed below. 45As discussed above, on 7 February 2014, the keys were returned to the landlord's agent, together with a letter of demand by the tenant. Ms Bannister's documentary evidence contains 'file notes' of conversations she had with the tenant who previously occupied the premises, and the tenant who subsequently occupied the premises. The Tribunal regards such evidence as irrelevant to the real issue in the proceedings, which is whether or not the landlord was in breach of its obligations under Sections 52 and 63 of the Act in respect of the period between 2 January 2014 and 7 February 2014.

MEDICAL EVIDENCE REGARDING MS BANNISTER 46The medical certificate of Dr Tonkin states that the doctor had seen "photos" of the premises. Ms Bannister reported to the doctor her symptoms had been "sore eyes"; "chest tightness"; "poor concentration"; "difficulty in sleeping" and "disorientation at times". Ms Bannister stated her husband had "sore eyes" and children had "red eyes on waking in the morning". Ms Bannister informed Dr Tonkin that "prior to the move they had no medical complaints". Dr Tonkin asserted that, on the basis of what Ms Bannister had told her and the photos, the symptoms were "most likely related to mould". It does not appear Dr Tonkin considered any other possible cause of the reported "symptoms", nor does the report contain any diagnosis of any condition nor treatment recommendations. 47The report of Dr Hoile is a referral letter to Dr Baumgart. Interestingly, Dr Hoile was informed that when the Bannister's moved into the property it "appeared clean" and "now has widespread black mould". Dr Hoile's report contains no diagnosis nor treatment recommendations. 48The report of Dr Baumgart contains a history of Ms Bannister's symptoms as follows: "...she says soon after moving to where she was staying she developed redness of her eyes, tightness in her chest, sleep disturbance, coating of the tongue, difficulty in concentrating and thinking and often doing silly things". Dr Baumgart performed an examination and a mould skin prick test. Relevantly, his report states as follows: "Our skin prick tests show a satisfactory histamine positive control and don't show evidence of sensitisations to common airborne allergens that might otherwise account for her symptoms. We did not demonstrate allergic sensitisation to common moulds, including Aspergillus which would be one of the common black moulds, including Aspergillus which would be one of the common back moulds and Penicillium might be another. The story of Michelle improving with absence is important. I am not able to give a comment on the safety or adequacy or otherwise of a person's accommodation, I don't pretend to be a building inspector, but from a general point of view it would be silly for her to remain in such accommodation". 49In supplementary notes to his report, Dr Baumgart refers to Ms Bannister's symptoms being consistent with "mould irritation" rather than allergy. 50Notably, Dr Baumgart makes no comment in his report as to whether or not cleaning the mould in the premises would have had an effect on Ms Bannister's "mould irritation", or whether there was any other possible cause of Ms Bannister's symptoms.

REPORTS OF MS TRALAU ('MOULD RESCUE') AND MR LARK 51Ms Tralau authored reports dated 13 February 2014 and 28 February 2014. Attached to Ms Tralau's report dated 13 February 2014 is a report "prepared by" Ms Jill Lark, and "reported and released by" Mr David Lark of NSJ EnviroSciences Pty Ltd t/as MouldLab. The report is dated 10 February 2014. The report was signed by Mr David Lark, who states he is a Mycologist. 52Ms Tralau gave oral evidence at the Tribunal. She was cross examined by Mr Camarda. The Tribunal Member asked Ms Tralau questions, to understand her qualifications; the assumptions she made; and the methodology she employed in preparing her report. The tenant asked Ms Tralau questions in re-examination. 53Ms Tralau asserted that she had inspected the premises on 5 February 2014. She had taken a sample of air in the bathroom, which was placed in a sealed container (an 'air cell') and sent to Mr Lark. She also took an air sample outside the premises. According to Ms Tralau, she also did a "moisture mapping exercise" on the walls of the premises "looking for damp". Ms Tralau stated that the results of the air sample (tested by Mr Lark) in the bathroom "came back with an extremely high count in Aspergililus and Cladosporium". Ms Tralau asserted that the residence "should not be occupied" "until "it has undergone remediation by a certified remediator adhering to the IICRC S520 standard and guidelines for mould remediation: and "all of the occupants contents need to be remediated". Ms Tralau further asserted that the bathroom vanity needed to be replaced; plumbing needs to be fixed for the water leak "or the shower membrane needs fixed (sic); the "structural wall that is wet needs to be mechanically dried out"; each room of the premises needs to be "remediated" by cleaning and putting the room under "negative pressure"; all clothes need to be washed/dry cleaned; "furniture needs to be taken offsite and remediated as per the IICRC S250" and any items "mould damaged" need to be "disposed of". 54In a supplementary report dated 28 February 2014, Ms Tralau quotes the cost of "remediation" of the premises and the furniture of the tenants to be $5,940.00.

QUALIFICATIONS, EXPERTISE, AND METHODOLOGY OF MS TRALAU 55In circumstances where Ms Tralau asserts that the premises were completely uninhabitable due to mould contamination; requires complete "remediation"; and the cost of such remediation (including cleaning the tenant's furniture and belongings, but excluding alleged structural repairs required) is almost $6,000.00, the qualifications, assumptions and methodology of Ms Tralau need to be critically scrutinized. Ms Tralau' report did not contain an adoption of the NCAT Code of Conduct for experts, nor a copy of her curriculum vitae. She did not bring a copy of her CV to the Tribunal when she gave evidence. 56When questioned about her qualifications, she stated that she had no scientific qualifications, nor building qualifications. She stated her tertiary qualifications were "in business". Ms Tralau stated she had, however, completed a course with the "Institute of Inspection Cleaning and Restoration" ('the IICRC') by way of sitting "exams" with a "registered training organisation", which were then sent "overseas". According to Ms Tralau, the IICRC were based in the USA. The Tribunal asked whether the IICRC had any affiliation with any university of scientific organisation. She stated it did not. Ms Tralau did not have a copy of the "IICRC S250 standard" which she had referred to in her report to provide to the Tribunal. Ms Tralau stated she could not recall whether or not it was raining on the day she conducted testing of the residence. The only air test inside the premises she conducted was in the bathroom of the premises. 57In cross examination, Ms Tralau did not depart from her opinion that the residence was uninhabitable without being "remediated" due to mould contamination. She asserted that the results of Mr Lark's analysis of the air in the premises were substantially above the "World Health Authority" levels of mould "colony forming units" per square metre of air, and consequently the premises was a health risk. Ms Tralau did not have a copy of the "World Health Authority" standards to which she referred, to present to the Tribunal, not was such standards set out in her report nor the report of Mr Lark. She asserted that the result of "641,000" mould colony units per square metre was the highest result she had seen in her experience of preparing reports.

REPORT OF MR LARK 58Mr Lark describes himself in his report as a "Mycologist", but his report does not contain a copy of his CV, nor does it adopt the NCAT Code of Conduct. As discussed above, it does not contain any detailed reference to World Health Authority standards, nor a copy of such standards. Rather, the report contains a table, asserting that the air in the upstairs bedroom of the premises contained "641,000 Mould M^3" and that this falls into the "very high" category of "airborne mould & hyphal concentrations exceed 10,000/M3". Mr Lark asserted that, based upon Ms Tralau informing him that the occupants "have experienced poor health since residing in the premises" and "the results of the single sample taken from within the premises"; the premises are a "health hazard" and rated as "Condition 3" under the WHO Guidelines for Indoor Air Quality-Dampness and Mould, 2009". Mr Lark asserted that the premises require "assessment" by "personnel equipped with appropriate PPE and appropriate signage"; and that after assessment the premises (and likely its contents) require "remediation".

LANDLORD'S DOCUMENTARY EVIDENCE AND EVIDENCE OF MS COSIC 59Many of the documents the respondent landlord relied upon, such as the ingoing inspection report; and copies of text messages, were identical to documents provided by the applicant. However, the landlord relied on photos of the premises taken at the outgoing inspection; and a letter from Mr Carlos Coelho of Blue Turtle Cleaning date 6 February 2014 regarding the cancellation or postponement of the cleaning of the premises. 60Ms Cosic provided an undated and unsigned statement to the Tribunal, which relevantly states that when she found what she asserted was "minimal" mould in the "window seal", she told Ms Bannister to clean the mould, and if it returned Ms Cosic would "have it treated". According to Ms Cosic, Ms Bannister stated she "shouldn't have to clean" the mould and Ms Cosic "offered to send a cleaner the next day". 61The landlord's material contained an email from "Steve" a "mould inspector" from "Mould Removal" who had inspected the property after the tenants had vacated. The email contains general assertions about measures to reduce mould, such as keeping the windows open and cleaning the premises. The email does not give any details regarding the qualifications of 'Steve', and the Tribunal gives the document no weight.

APPLICATION OF LEGAL PRINCIPLES TO FACTSWAS THE PREMISES UNINABITABLE DUE TO MOULD? 62The Tribunal is not satisfied that the applicant has proved on the balance of probabilities that the premises were not provided by the landlord in a reasonable state of cleanliness and fit for habitation in breach of Section 52 of the Act. 63The Tribunal is satisfied that photographs of the premises show some mould on the frames of the upstairs bedrooms of the townhouse, and some mould on the bottom of the blinds on both bedrooms. However, the photographs do not indicate that there is mould on the ceilings of the premises, nor the walls other than a small number of black marks on a wall of the lounge room. There is an indistinct photograph showing what may, or may not be, a water stain on the ceiling of the bathroom. However, if it is a water stain, there is no mould growing on the ceiling or walls of the bathroom. The photographs show mould inside the leaking vanity unit. 64The Tribunal does not place any significant weight upon the opinions expressed by Ms Tralau and Mr Lark. The Tribunal is not satisfied Ms Tralau has the appropriate expertise to comment upon the building structure of the residence, nor to assert that the premises was so badly contaminated by mould that it is uninhabitable until "remediated". The Tribunal has set out above the flaws in the methodology of the reports of both Ms Tralau and Mr Lark, with the Tribunal being given no information regarding expertise, nor details of the "World Health Organisation" standards which both experts claim the mould content in the premises exceeds. 65Although Ms Bannister may genuinely believe she suffered symptoms related to mould exposure whilst residing in the premises, it is notable that the tests performed by Dr Baumgart did not demonstrate an allergic reaction to mould by Ms Bannister, but possibly a "mould irritation". Mr Bannister's symptoms were mild, and there is no medical evidence in respect of the children. The Tribunal is not satisfied the tenant has proved on the balance of probabilities that the presence of mould was of such a high degree that there was a risk of injury to the occupants if they continued to reside in the premises. 66Further, even if the Tribunal was satisfied that there was a high degree of mould contamination which occurred after the tenant and his family moved into the premises, the tenant is not entitled to compensation unless all reasonable measure were taken to mitigate the tenant's loss. At no stage did the tenant, or his wife, attempt to clean the mould. This is not a situation, as the Tribunal has encountered in the past, where there is mould contamination and repeated efforts to clean the mould do not eradicate the problem, due to the dampness and/or poor ventilation of premises. Neither the tenant, nor Ms Bannister, made any effort to clean the mould. Further, when Ms Bannister requested a cleaner attend the premises, that request was actioned by Ms Cosic in a timely manner. Even if it is argued that Ms Bannister was not able to clean the mould due to her perceived symptoms, there is no evidence as to why Mr Bannister could not have made some effort to clean the mould. 67In respect of the other issues raised by the tenant about the condition of the premises, such as the leaking pipe in the bathroom vanity, the noisy taps; and the garage lock, and the request that an exhaust fan be installed in the premises (it being rented without such a fan) the Tribunal is not satisfied the tenant has proved to the requisite standard of proof that such issues rendered the premises inhabitable.

FAILURE TO CONDUCT REPAIRS 68The Tribunal is satisfied that the tenant has proved on the balance of probabilities that the landlord has breached its obligation under Section 63 of the Act by reason of the failure to repair the water leak in the bathroom vanity within a reasonable time. The water leak was obvious from the commencement of the tenancy (the tenant giving evidence that there was a container under the pipe when the tenant moved in) and the tenant directly brought the condition of the bathroom vanity to the attention of the agent on 10 January 2014. The fact that the landlord regarded the plumber's quote to repair as "too expensive" does not relive the landlord from the obligation of conducting the repairs (or replacing the vanity) within a reasonable period of time. 69The Tribunal is not satisfied the landlord is in breach of its obligation under Section 63 of the Act in respect of any other issue raised by the tenant. In respect of the cleaning of the premises, the property manager arranged for a cleaner to be engaged within a reasonable period of time after the tenant had raised the issue of the mould affecting the health of Ms Bannister. As discussed above, the failure of the tenant to perform cleaning of the mould constitutes a failure to mitigate in any event. The other complaints by the tenant about items requiring repair were minor, and even if the Tribunal was satisfied of breach, it is not of the view that any compensation arises other than in respect of the leaking pipe in the vanity. 70In assessing compensation under Section 187 of the Act, the Tribunal has considered the relevant authorities set out in Anforth, Christensen and Taylor, Residential Tenancies Law and Practice NSW 5th edition (2011) Federation Press at pp 272-287. The Tribunal takes into account that the tenant was only in the property for a short period of time, and the compensation for loss of amenity must be assessed in this context. The Tribunal assesses the amount of compensation to the tenant due to the landlord's breach of Section 63 of the Act as $480.00, reflective of one week's rent.

DAMAGE TO THE TENANT'S PROPERTY 71The Tribunal is not satisfied the tenant has proved on the balance of probabilities that his personal belongings (mattresses, furniture and mats) which were disposed of after leaving the premises was mould infested as alleged, and dismisses this aspect of the claim.

CONCLUSION 72The Tribunal dismisses the tenant's claim for compensation, other than in respect of failing to repair the water leak in the bathroom vanity. The Tribunal, not being satisfied the tenant had lawfully terminated the lease, awards the landlord in respect of its application for compensation a 'break fee' of 4 weeks rent. However, Rental Bond Services has not, according to documentation on the Tribunal's file, released the bond. Accordingly, rather than making separate money orders, the Tribunal is of the view that the appropriate order is that Rental Bond Services pay the landlord $1,440.00 of Rental Bond Number O999884-8 (being the bond with a deduction of $480.00) with the remainder of the bond to be paid to the tenant. G.J. Sarginson General Member Civil and Administrative Tribunal of New South Wales 19 June 2014 I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 September 2014

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