The applicants (the Tenants) are the former tenants of a strata-title apartment at Carlingford (the Premises). The respondent (the Landlord) is the owner of the apartment, and their former landlord. the Landlord was represented at all times by Century 21 Real Estate in Carlingford (the Agents).
The Premises is unit 5 in an apartment complex named "The Image". By a residential tenancy agreement dated 25 January 2018, the Tenants let the Premises from the Landlord for a period of 12 months, commencing on 12 February 2018 and scheduled to terminate on 11 February 2019 (the tenancy agreement).
The Tenants sent the Agents an email on 5 March 2018, claiming that the Landlord had breached several obligations under the tenancy agreement, including (i) a breach of the landlord's agreement to give the tenants quiet enjoyment of the Premises, as contained in clause 14.2 of the tenancy agreement, by making "incessant and repeated communication" to them; and (ii) a breach of the landlord's obligation to give the tenants a copy of the by-laws applying to the Premises within 7 days. The email advised the Agents of the termination of the tenancy agreement as a result of those alleged breaches, with the Tenants to "vacate the Premises at a date to be agreed". It also advised that the Tenants intended to claim reimbursement of various amounts.
By agreement with the Landlord, through the Agents, the Tenants returned the keys and vacated the Premises on 26 March 2018. The parties agree that the tenancy agreement was terminated at that point.
On 18 April 2018, the Landlord brought proceedings in the Tribunal seeking compensation for losses caused by the "abandonment" of the Premises, in the order of $3,200, and for the bond to be released to him. That application was heard and disposed of on 16 May 2018, as described below.
On 22 May 2018, the Tenants filed the application in these proceedings, alleging breach of ss 50(2) and 52(1)-(3) of the Residential Tenancies Act 2010 (NSW) (the RT Act) by the Landlord, and claiming compensation of $15,000 under 3 heads:
1. $5,500 for economic loss, including (but not limited to) packing and removalist expenses and extra rent at their new accommodation;
2. $4,500 for non-economic loss, described as "cost of inconvenience"; and
3. $5,000 for disappointment and distress.
The Landlord denies the claim in full.
[2]
Appearances
The Tenants appeared at the hearing in person. The Landlord was represented by Ms Holden and Ms Jiang from the Agents.
[3]
The Tenants
The Tenants relied on a statutory declaration declared by Mr Lewin on 21 June 2018, with annexures (which was marked Exhibit A). They also relied on a bundle of documents enclosed with their email to the Tribunal, dated 22 May 2018 (Exhibit B). Mr Lewin also gave sworn oral evidence in support of the application. Mrs Lewin did not give any evidence in the proceedings.
Paragraphs 4-7 of Mr Lewin's statutory declaration read as follows:
[4] During our occupation at "the Image" apartment complex my wife & I noted numerous accounts in which the actions of Century 21 breached terms & conditions contained within [the] residential tenancy agreement & Residential Tenancies Act 2010, respectively referred herein. We felt cheated, disappointed.
[5] This Statutory Declaration is provided in support of our family's claim for compensation on grounds of interference with & permission granted to interfere with our quiet enjoyment, reasonable peace, comfort & privacy of the above-mentioned residential premises by Century 21, as tenants. Our family has been significantly economically disadvantaged through actions of Century 21. The non-economic repercussions on our family due to actions of the Respondent have been devastating for us & continue to affect our daily lives.
[6] The actions of the Respondent in this case have cost our family tremendous & undue physical, emotional, mental, relationship, financial & time stress & pressure through the frequent & consistent interference of our reasonable peace, comfort & privacy from tenancy commencement on 12th February 2018 until departure 26th March 2018 & beyond, until the present time. The interference of our peace, comfort & privacy has been executed by the Respondent & in breach of terms contained within our residential lease agreement & within Residential tenancies Act 2010. Other breaches of our lease agreement & Residential Tenancies Act 2010 by Century 21 have also caused disruption to our peace, comfort & quiet enjoyment of our residence.
[7] I hope to expose the incompetent, unconscionable & malicious treatment without regards to residential law & tenants rights with which the Respondent has treated our family as tenants (& thereafter, compounding damages to our family regarding non economic costs). In my bid to deter the Respondent from repeat actions & to encourage accountability, I have provided examples in which Century 21 has breached terms of lease & Residential Tenancies Act 2010 as well as shortcomings relating tenants services not/provided us, some of that are directly related to our claim for compensation."
The subsequent paragraphs in the statutory declaration are set out under headings, including "Mould", "Laundry light", "Car Park Query Threaten our Peace & Quiet", "Threat of Termination for Furniture. 94 minutes to Move or Lose", "Heavy Handed - Our Car Park Wall", and "Further False Allegations. Termination Notice". Those paragraphs makes repeated assertions that the various items reported in it interfered with the family's peace, comfort or privacy in different ways. The Tribunal has considered all of those assertions.
While the statutory declaration refers to various visits by members of the Lewin family to medical practitioners, there is no specialist medical expert medical evidence setting out the terms of any observations or medical diagnosis with the exception of one generally-worded medical certificate from Mrs Lewin's doctor.
[4]
The Landlord
The Landlord relied on the bundle of documents provided to the Tribunal on 25 June 2018 (which was marked Exhibit 1). The bundle included a 2-page submission by Ms Jiang, together with copies of:
1. an exclusive management agency agreement for the Premises, dated 25 February 2010;
2. The tenancy agreement, dated 25 January 2018;
3. a bundle of email correspondence between the strata manager for the apartment complex (the strata manager) and the Agents, enclosing various photographs and making various complaints against the Tenants in the period 12 February to April 2018; and
4. a bundle of email correspondence and letters between the Agents and the Tenants in the period February to May 2018.
The Landlord also relied on a tenant history ledger for the previous tenant of the Premises, covering the period 23 October 2017 to 19 January 2018, and an invoice for the cleaning of the Premises, dated 8 February 2018 (collectively, Exhibit 2), and a copy of the strata plan for the complex (Exhibit 3). Ms Jiang and Ms Holden also gave sworn oral evidence in defence of the claim.
Both parties questioned each other on the evidence that they gave.
[5]
Jurisdiction
The Tribunal has such jurisdiction and functions as may be conferred or imposed on it by or under the Civil and Administrative Tribunal Act 2013 (NSW) or any other legislation: Civil and Administrative Tribunal Act 2013, s 28. The RT Act confers jurisdiction on the Tribunal in respect of residential tenancy agreements under that Act.
I am satisfied that a residential tenancy agreement existed between the parties for the purposes of RT Act and that the Tribunal has jurisdiction to hear and determine this dispute. I am satisfied that the monetary amount claimed by the Tenants is within the monetary jurisdiction of the Tribunal, as limited by clause 23 of the Residential Tenancies Regulation 2010 (NSW).
[6]
Issues to be determined
The issues to be determined by the Tribunal are:
1. whether the Landlord breached the landlord's general obligation to provide the residential premises in a reasonable state of cleanliness and fit for habitation by the tenant under s 52(1) of the RT Act;
2. whether the Landlord breached the prohibition on the landlord against interfering with the supply of gas, electricity, water, telecommunications services or other services to the residential premises under s 52(2) of the RT Act;
3. whether the Landlord breached the landlord's general obligation to comply with the landlord's statutory obligations relating to the health or safety of the residential premises under s 52(3) of the RT Act;
4. whether the Landlord (including by the Agents) breached the Tenants' right to quiet enjoyment under s 50 of the RT Act in the events claimed; and
5. if so, in all 3 cases, the value of the compensation (if any) that should be awarded to the Tenants.
[7]
The provisions
Section 50 of the RT Act provides:
"50 Tenant's right to quiet enjoyment
"(1) A tenant is entitled to quiet enjoyment of the residential premises without interruption by the landlord or any person claiming by, through or under the landlord or having superior title (such as a head landlord) to that of the landlord.
"(2) A landlord or landlord's agent must not interfere with, or cause or permit any interference with, the reasonable peace, comfort or privacy of the tenant in using the residential premises.
Maximum penalty: 10 penalty units.
"(3) A landlord or landlord's agent must take all reasonable steps to ensure that the landlord's other neighbouring tenants do not interfere with the reasonable peace, comfort or privacy of the tenant in using the residential premises.
"(4) This section is a term of every residential tenancy agreement."
Section 52 of the RT Act states:
52 Landlord's general obligations for residential premises
(1) A landlord must provide the residential premises in a reasonable state of cleanliness and fit for habitation by the tenant.
(2) A landlord must not interfere with the supply of gas, electricity, water, telecommunications services or other services to the residential premises unless the interference is necessary to avoid danger to any person or to enable maintenance or repairs to be carried out.
(3) A landlord must comply with the landlord's statutory obligations relating to the health or safety of the residential premises.
Note: Such obligations include obligations relating to swimming pools under the Swimming Pools Act 1992 .
(4) This section is a term of every residential tenancy agreement.
[8]
Cleanliness and fitness for habitation
Section 52(1) is concerned with the initial condition of the premises, not the conditions which may develop during the term of the lease (cf s 63, which also concerns the maintenance of the premises).
Subsection (1) requires the premises to be provided (firstly) in a "reasonable" state of cleanliness and (secondly) fit for habitation at the commencement of the tenancy. The word "reasonable" qualifies the expected state of cleanliness. It is open to a landlord to argue that the actual state of cleanliness was reasonable having regard to matters such as the rent and the age and life expectancy of the premises.
The Tribunal noted in De Soleil v Palmhide Pty Ltd [2010] NSWCTTT 462 that the test of uninhabitability was a difficult one to satisfy and should not be lightly found by the Tribunal - although an accumulation of defects in a property may render it unfit for habitation: Kuek v Butterfield [2004] NSWCTTT 210.
Generally, a lack of cleanliness at the start of a tenancy can be remedied by cleaning. It would only be in extreme cases that the premises were uninhabitable due to a lack of cleanliness.
The term "fit for habitation" is not new to the RT Act. It has been a part of the common law for a long time. The Court of Appeal in the United Kingdom noted in Proudfoot v Hart (1890) 25 QBD 42 that the terms "fit for habitation" and "tenantable repair":
"… both import such a state as to repair that the premises might be used and dwelt in not only with safety, but with reasonable comfort, by the class of persons by whom and for the sort of purpose for which, they were to be occupied … judged by contemporary standards … The habitability standard would be concerned with the minimum safety standards echoed in the above cases, going to both structural and health issues. … the state of repair must at least meet the minimum standards inherent in the contemporary understanding of the term "fit for habitation".
The court in Morgan v Liverpool Corporation [1927] 2 KB 131 noted at 145 that premises are habitable if the state of the premises does not represent a threat to the life, limb or health of the tenant. The court in Summers v Salford Corporation [1943] AC 283 noted at 292 that the term "imports some reference to what we call humanity or humaneness" and "is of wide and elastic" meaning to take account of "the needs and circumstances of poor people living in confined quarters".
The Appeal Panel stated in Bhandari v Laming [2015] NSWCATAP 224 at [38]:
The obligation to provide residential premises fit for habitation is mandatory and, according to language used in the provision, unqualified. Relevantly, the obligation is not expressed to be contingent on reasonable steps or to be dependent on the landlord being at fault or having control over the event or circumstance affecting the state of the premises. This is in contrast with the obligation on the landlord to provide and maintain the residential premises in a reasonable state of repair (s 63 RTA) and the obligation that arises in respect of the tenant's entitlement to quiet enjoyment of the residential premises (s 50 RTA). The landlord's obligations under sections 50, 63 and 52 (in relation to the state of cleanliness of the residential premises) are mandatory and ongoing but qualified by the concept of reasonableness.
The expression "unfit for human habitation" is exactly synonymous with "unfit to live in": Gray v Queensland Housing Commission [2004] QSC 276 at [10]; Hampel v South Australian Housing Trust [2007] SADC 64 (Hampel) at [51]. The common feature of the cases decided at common law and in respect of various statutes dealing with fitness for human habitation is that the defects put at risk the health and safety of the tenant. They involved more than mere inconvenience or aesthetic deficiencies. See Hampel at [52]-[63], concluding:
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.
However, as stated in McLeish v FT Eastment & Sons Pty. Ltd (1970) 91 WN (NSW) 268 and Finn v Finato [2004] NSWCTTT 179 (both relying on Proudfoot v Hart), the reasonable comfort of the tenant must be considered in addition to safety.
Mould in premises can affect the amenity of the premises. If it is bad enough, the premises may be uninhabitable as a result. For example, the tenants in Roberts v Bell [2001] NSWRT 6 provided the Tribunal with a range of correspondence and photographs which established that the premises had excessive leakage and dampness problems, and were very damp and mouldy in many rooms. and the tenant consequently suffered health problems. The Tribunal held that the premises were not in a habitable state of repair. Similarly, the Tribunal in Stuart v Colley [2005] NSWCTTT 683 held that a property that was "badly affected" by rising damp, causing mould to come through the inside walls in the premises, was uninhabitable. The Tribunal in that case found that the "continuing existence of damp and mould on newly painted walls" rendered the premises unfit for habitation.
By contrast, the Tribunal in Melnik v Gudde [2009] NSWCTTT 664 found that a small area of water leakage, causing a small section of a wall to be "mouldy, wet, bubbly and peeling" did not make the premises unfit for habitation.
[9]
Interference with services
The word "interfere" is a common English-language word, and not a term of art. It should be interpreted with its normal English-language meaning. The Concise Macquarie Dictionary defines "interfere" as (the italics is in the original:
1. To interpose or intervene for a particular purpose. 2. To take part in the affairs of others; meddle: to interfere in others' disputes. 3. To come into opposition, as one thing with another, especially with the effect of hampering action or procedure: these interruptions interfere with the work.…
"Interference" is defined similarly: "the act or fact of interfering". A similar definition is also found in Black's Law Dictionary (tenth edition):
1. The act of meddling in another's affairs. 2. An obstruction or hindrance. …
On a literal reading of the subsection, breach of subsection 52(2) requires there to be an ongoing supply of a service to the premises, and for the landlord to intervene to interrupt or disrupt the supply of that service. However the Tribunal also considers that positive acts taken by a landlord to obstruct, prevent or hinder the connection of a service to premises would also amount to interference with the supply of services within the subsection.
If it is established that the landlord has interfered with the supply of services to the premises, it is open to the landlord to establish as a defence that the interference was necessary to avoid danger to any person or to enable maintenance or repairs to be carried out.
[10]
Compliance with statutory obligations relating to the health or safety of the premises
Subsection 52(3) of the RT Act relates heavily to the obligation to provide premises that are fit for habitation in subsection 52(1). However an action under subsection 52(3) requires the tenant to identify a particular statutory obligation relating to the health or safety of the premises, and to establish that the landlord has breached the obligation concerned.
[11]
Quiet enjoyment
Section 50(1) of the RT Act (and clause 14 of the standard form of residential tenancy agreement) are unconditional in describing that the tenant is entitled to/will have quiet enjoyment of the premises "without interruption by the landlord …". The tenant's right to quiet enjoyment is defined in subsections 50(2) and (3) of the RT Act in terms of reasonable peace, comfort and privacy in using the premises. A tenant's right to quiet enjoyment is not breached if the tenant suffers a mere inconvenience. This is implied by the word "reasonable" in s50. See Glasshouse Investments Pty Ltd v MPJ Holdings Pty Ltd [2005] NSWSC 456 at [16]. See also Southwark LBC v Tanner [2001] AC 1, where the UK House of Lords found that the tenant's comfort must be "substantially interfered with".
Further, in an article titled "The Price of Quiet enjoyment" (1999) 7 APLJ 155, A Rissman states:
"It was said in Browne v Flower [1911] 1 Ch 219 at p 228 that a `mere interference with the comfort of persons using the demised premises by the creation of a personal annoyance such as might arise from noise, invasion of privacy or otherwise is not enough' to amount to a breach of the covenant of quiet enjoyment. Something more than a mere inconvenience is required."
In McC v Director of Housing [2009] VCAT 2748, the Victorian Civil and Administrative Tribunal cited Southwark and that article before continuing at [41]:
It seems to me that the term quiet enjoyment is not an absolute term, but that a breach of quite enjoyment would have to be an interference that is unreasonable or significant in some way and more than inconvenience. This is consistent with contemporary living arrangements requiring a degree of give and take, of tolerance regarding the behaviour of neighbours.
The Tribunal there held that bird noises, flood lighting and minor invasions of privacy by neighbours are mere inconveniences, and do not amount to a breach of quiet enjoyment.
Lastly, it has been held in Ciesiolka v Department of Housing NSW [2010] NSWCTTT 497 that the sending of three rental arrears letters, three water rates arrears letters and a notice of termination was not a breach of the tenant's right to quiet enjoyment. Similarly, in Shirvington v Commonwealth (No 2) [2015] FCCA 522 the Federal Circuit Court held that there was no breach of quiet enjoyment in the landlord serving a notice of termination and a letter indicating its intention to seek possession of the premises.
[12]
The facts arising on the evidence
Having weighed and considered the evidence presented by both parties, the Tribunal finds that the facts occurred as follows.
Mr Lewin is employed on a full-time basis as a bus operator with State Transit Authority. He usually works 40 to 50 hours each week including public holidays and weekends on the evening roster. He usually finishes work after midnight, and occasionally after 4 AM. He is the sole income earner for the family which comprises Mr Lewin, Mrs Lewin and their 2 children, Olivia aged 6 and Larry aged 10.
The Landlord is the owner of the Premises. The Premises is one of 72 lots in the complex. The strata plan for the complex was registered in March 1999, suggesting that the complex and the Premises are about 19 years old.
Lot 5 comprises a residential apartment together with a lock-up garage and an open car space (the car space). The apartment itself in on the first floor of the complex, in the south-west corner. The lock-up garage and the car space are in the basement of the complex. As shown on the strata plan, the car space sits in a corner, between a column and two brick walls that form part of the common property. At all material times the car space was marked with a small sign which read "unit 5 parking".
The Landlord had let the Premises to a previous tenant between 23 October and 12 December 2017.
The Tenants inspected the Premises with the Agents on 24 January 2018. Later on 24 January 2018 the Agents sent an email to the Tenants congratulating them "on the approval of your new home".
On 25 January 2018 the Landlord (as landlord) and the Tenants (as tenants) entered into the tenancy agreement. The tenancy agreement was largely based on the standard form prescribed in the Residential Tenancy Regulation, with special conditions. The tenancy was stated to be for a period of 12 months commencing on 12 February 2018 and ending on 11 February 2019. Rent was payable at the rate of $530 per week, payable in advance, with the first payment due made on 12 February 2018. A rental bond of $2,120 was payable on signing the agreement (equal to 4 weeks rent).
The relevant provisions of the tenancy agreement included:
1. if the Premises include garage, the garage is provided for the purpose of parking a motor vehicle and not of the storage of goods (page 2);
2. The tenant will have quiet enjoyment of the Premises without interruption by the landlord or any person claiming by, through or under the landlord, or having superior title to that of the landlord (clause 14.1);
3. The landlord of the landlord's agent will not interfere with, or cause or permit any interference with, the reasonable peace, comfort and privacy of the tenant in using the Premises (clause 14.2);
4. The tenant agrees not to cause or permit a nuisance (clause 15.2);
5. The tenant agrees not to interfere or cause or permit interference with the reasonable peace, comfort or privacy of neighbours (clause 15.3);
6. The tenant is responsible to the landlord for any act or omission by a person who is lawfully in the residential premises with the tenant's consent (clause 16.3);
7. The landlord agrees to make sure that the residential premises are reasonably clean and fit to live in (clause 18.1);
8. The landlord agrees not to interfere with the supply of gas, electricity, water, telecommunications or other services to the Premises (unless interference is necessary to avoid danger to any person or enable maintenance or repairs to be carried out) (clause 18.4);
9. The landlord agrees to give to the tenant, within 7 days of entering into the tenancy agreement, a copy of the by-laws applying to premises if they are premises under the Strata Schemes Management Act 2015 (NSW) (clause 35);
10. The tenant agrees not to store rubbish on the Premises, and not to store any items in the garage, storage cage, open car space or any other storage facility on the Premises; storage of any items on the Premises as at the tenant's own risk (clause 47.11);
11. The tenant agrees the availability of telephone or fax lines; internet services; analogue, digital or cable television (and the adequacy of such services); are the sole responsibility of the tenant and the tenant should make their own enquiries as to the availability and adequacy of those services before executing the agreement (clause 48.2);
12. The tenant agrees to observe all relevant statutes, statutory regulations, strata by-laws, company title rules and community title rules relating to health, safety, noise and other housing standards with respect to the Premises (clause 56.1); and
13. where the Premises are subject to the Strata Schemes Management Act 2015 (and similar legislation), the tenant agrees to observe and comply with any applicable strata by-laws and/or management statements and any applicable law (clause 56.2).
At all relevant times, the strata by-laws for the complex included:
1. An owner or occupier of a lot must not create any noise on a lot or the common property likely to interfere with the peaceful enjoyment of the owner or occupier of another lot or any person lawfully using common property (model by-law 1).
2. An owner or occupier of a lot must not park or stand a motor vehicle on common property except with the prior written approval of the owners corporation (model by-law 2).
3. An owner or occupier of a lot must not mark, paint … or otherwise damage or deface any structure that forms part of the common property except with the prior written approval of the owners corporation (model by-law 5 (1)).
4. An owner or occupier of a lot must take all reasonable steps to ensure that invitees of the owner or occupier do not behave in a manner likely to interfere with the peaceful enjoyment of the owner or occupier of a lot a lot or any person lawfully using common property (model by-law 8).
5. An owner or occupier of a lot must not deposit … on the common property any rubbish, dirt, dust or other material … except with the prior written approval of the owners corporation (model by-law 9).
6. The owner or occupier of a lot must not, without the prior written approval of the owners corporation, maintain with the lot anything visible from outside the lot that, viewed from outside the lot, is not in keeping with the rest of the building (model by-law 17(1)).
7. An owner or occupier of a lot must not park or stand any motor or other vehicle on the common property, including the visitor parking spaces, except with the prior written approval of the owners corporation (special by-law 4(1)).
8. An owner or occupier of a lot must not park or stand any vehicle in a parking space that forms part of a lot without the written approval of the owner or occupier of the parking space (special by-law 4(5)).
On 29 January 2018 the Agents advised the Tenants that the Premises included a car space or carport.
On or about 8 February 2018 the Agents had arranged for the Premises to be cleaned, for which the Agents were charged $330.
On or about 10 February 2018 the Agents conducted an ingoing condition inspection for the Premises and prepared a condition report, which set out the results of that inspection. Save as set out below, the Tribunal is satisfied that the condition of the Premises was generally in keeping with the condition typewritten in that report. In particular, the Tribunal is satisfied that the light globe in the laundry had come off the ceiling, as noted in that report. The report also noted that the vertical blinds in the lounge, kitchen and bedrooms had "some stains", and that there were "mould stains" on top of the window in the main bathroom.
The Agent provided a copy of the ingoing condition report to the Tenants at about that time (although the date of the landlord's signature appears to have been altered to read "12" February 2018 on the copy that is in evidence). That copy was endorsed with the instruction that it was the tenant copy, for the Tenants to mark and return to the Agents within 7 days. The Tribunal is also satisfied that the Agents had also provided a copy of the strata by-laws to the Tenants by that time.
The Tenants moved into the Premises on Monday 12 February 2018. They did not engage removalists, preferring to move their belongings themselves. Consequently, the Tenants spent most of their time between 12 and 16 February 2018 moving their belongings into the Premises, setting up their belongings and cleaning the Premises.
In his evidence, Mr Lewin notes that the light fitting in the laundry (referred to in the ingoing condition report) was still hanging from the ceiling, and had not been repaired. He sent a SMS message to the Agents at about 9:41 AM showing a picture of the hanging light, stating that it had not been fixed yet. The Agents responded stating that it would send out a work order that day. The light was subsequently repaired by the Agents' contractor, but the Tenants complain that the repair contractor's visit (which occurred within a few days, while they were still unpacking) was "embarrassing due to scattered personal belongings that we had not finished unpacking" and "did not bring any quiet enjoyment, peace or comfort to us". I will address that claim below.
On 12 February 2018, Mr Lewin also sent the Agents a photograph showing the skirting tile on a small section of a wall (apparently near the toilet) to be cracked. This was the only photograph of any condition issues with the apartment that the Tenants sent to the agent before they terminated the tenancy agreement on 5 March 2018.
When the Tenants moved into the Premises there was some confusion about whether the lock-up garage described above was for their use. Because they did not have access to the garage, the Tenants parked their car in the closest available car space to the unit 5 garage and to the stairs leading to the Premises, so they can unpack their belongings. On the evidence, the Tenants also left personal belongings stored in and around that car space.
The car space that they were using was not the unit 5 car space. That car space was either common property or part of another lot in the complex. Consequently, the Tenants left goods stored in a car space at the complex that was not part of their tenancy.
In his evidence, Mr Lewin agreed that he drank alcohol (a can of beer) and smoked while in the carpark of the complex on that day, which he says (and the Tribunal has no reason to find otherwise) was to celebrate moving into the Premises in a modest way.
On 13 February 2018 the Agents advised the Tenants of the precise location of the unit 5 car space, which they then located. The Tenants parked their car in that space. They also moved some of their belongings into the space. This included a pile of belongings that the Tenants intended to dispose of through a Council clean-up collection.
The Tenants booked that Council clean-up collection on 15 February 2018. They received an email confirming that the collection would take place on 23 February 2018. Mr Lewin planned to keep the belongings in the car space until 22 February 2018, when he intended to move them to the footpath for that collection.
On 18 February 2018 the Agents telephoned the Tenants and ask them to remove their belongings from the car space. The Tenants replied by email, stating that the belongings were waiting for the council collection and would be removed before that date.
On 19 February 2018, the strata manager sent a photograph to the Agents, under the subject heading "SP58995 The Image Unit 5 Chattels", which showed a pile of furniture and other belongings heaped-up against the common property walls in the unit 5 car space. The pile included 3 or 4 purple-coloured items, and other items that were coloured blue.
The receptionist at the Agents' office then sent an email to the Tenants, stating "… you are required to put furnitures at the right car space as we have received a message from strata regarding this issue. Please remove and put at the right carspace for unit 5". The email is confusing as against the tenancy agreement, which does not permit goods to be stored in garages or car spaces, however on 18 February 2018 the Agents telephoned the Tenants and asked them to remove all their belongings from the car space. The Agents then agreed that they could do that by the time of the Council collection on 23 February 2018.
Also on 19 February 2018, the Tenants completed the ingoing condition report, broadly agreeing with the Agents' assessment of each room by marking a "Y" in the column "Tenant agrees" for most items in the report. They commented that the blinds in the lounge room, kitchen and in the bedrooms were "dirty", "very dirty" or "stained" (but not mouldy). They also commented on the report that there was "mould in main bathroom, shower walls & ceiling". They also noted that the ceiling was "rusty".
Mr Lewin stated in his statutory declaration that when he moved into the Premises he noticed what he described to be a pungent odour when moving into the Premises, and that the apartment had not been cleaned. He asserted that some blinds in the apartment were heavily laden with mould. He asserts that he did not mention the mouldy condition of the apartment to the Agents at that time, because he was busy with work, regular living and parenting duties as well as moving his personal belongings into the Premises.
The Tribunal does not accept that evidence:
Firstly, there is no evidence that the Tenants noticed any similar odour when they inspected the Premises a few weeks earlier, on 24 January 2018.
Secondly, no such odour was mentioned in his SMS exchange with the Agents on 12 February 2018, the day concerned.
Thirdly, it is clear on the evidence that the Premises were cleaned only a few days before the Tenants moved in.
Fourthly, having closely examined the photographs that the Tenants rely on, the Tribunal is not satisfied that the darkness on the blinds, which the Tenants describe as mould, is mould. In the Tribunal's determination based on that examination, and given the apparent age of the Premises (19 years), the Tribunal accepts the Landlord's submission that the darkness on the blinds was accrued grime from the Premises being let for several years.
That said, the Tribunal is satisfied that there was some light mould showing on the walls above the shower in the bathroom at the beginning of the Tenants' tenancy, which the Tenants removed by cleaning the walls concerned over the next few days:
The condition report dated 10-12 February 2018 records there being some mould stains on top of the window, with the (metal) ceiling edge showing rust.
The Tribunal accepts the handwritten notes made by the Tenants on the condition report by 19 February 2018, to the extent that they refer to some mould on the walls around the shower and some mould stains on the walls in that bathroom at the commencement of their tenancy.
The "before" pictures provided by the Tenants to the Agents on 8 March 2018, showed evidence of light mould on the untiled wall surfaces above the shower and around the window of the bathroom, as well as rust on the metal ceiling support frame members in the same areas. The areas affected by mould appeared to be less than 0.5 metres tall, by about 3.5 metres in total length. However there was little photographic evidence of mould on the wall or floor tiles, ceiling tiles or other surfaces in that bathroom.
The "after" pictures provided by the Tenants to the Agents at the same time showed evidence that the mould had been removed successfully by the Tenants' initial cleaning.
There was no evidence to establish that the mould regrew in the bathroom after that initial cleaning.
On 20 February 2018, at about 7:52 AM, the Tenants sent an email to the Agents, enquiring which was the correct car space and including a photograph showing their car (but no other goods) in the unit 5 car space, under the sign "Unit 5 parking". The Tenants claim that their "right to quiet enjoyment and comfort had been abolished in favour of some confusion caused by the Respondent … We felt extremely uncomfortable being threatened for no reason and in disregard of our efforts in sending illustrative query of which was the correct car space for us to use". I will address that claim below.
On 21 February 2018 (a Wednesday), at about 6:51 pm, Robyn Sinclair, who is described in the evidence as a member of the owners corporation executive, sent an email to the Agents, attaching a photograph showing a stack of personal belongings approximately 4 metres in length, 1-2 metres in width and about 1 metre in height in the unit 5 car space, stacked against the common property walls. The email raised 7 bullet point allegations against the Tenants, including that:
a week earlier they had started unloading items between 9:30 pm and midnight, with "NO concern or respect shown for current residents i.e. noise");
They (or one of them) were drinking a can of VB and smoking on common property;
They had 2 cars parked on the property;
contrary to previous advices, the items in the car space had not been removed;
There was a "complete ruckus" between 5 and 6 pm in the pool area;
Mr Lewin was witnessed "bombing" into the pool, with noise echoing around the area, impacting residents; and
They were treating the complex like a "holiday resort".
Pausing there, the complex includes a swimming pool which is surrounded on 4 sides by multistorey apartment buildings. There are 2 signs on the fence surrounding the pool. One is headed "swimming pool rules", which includes a rule "no bombing". The other is headed "important notice - use of common areas", which states in part:
"We ask the residents using common property display courtesy to their fellow neighbours by keeping noise to a minimum. Noise travels easily around the complex and your noise can disturb the peaceful enjoyment of other residents. Therefore please be aware of the noise that you or your guests may be creating and ensure that it is kept down to a reasonable level particularly in the evening. Any residents creating noise which distress other residents will be reported and fined."
On 22 February 2018, about 10:26 AM, the Agents sent an email to the Tenants, enclosing a letter styled "Warning letter for inappropriate behaviours". The email, which recited the bullet-point list received from Ms Sinclair, attached 2 photographs showing the pile of goods stored against the wall in the unit 5 car space. The letter stated in part:
"Please be advised that this is a warning notice in regards to your inappropriate behaviours recently reported by strata. It has come to our attention that the attached items are still not removed to date to spot our several requests. Please note you have been in breach of strata by-law.
Please refer to the attached photo sent by strata further advised if you cannot remove those items by noontime today, they will remove your items without any notice and forward the bill to you.
Our office has no option but to serve a termination notice as well if it is not rectified immediately."
Mr Lewin takes objection to the letter on the basis that it only left him 94 minutes to remove the goods before the noontime deadline described as imposed by the strata corporation. He argued in his statutory declaration (at [28]-[36]) that the claims in the letter were unjustified, including that they:
"… made us feel extremely uncomfortable as it demanded our immediate action, disturbing our peace. We were shocked to learn that we had an hour & a half to move our belongings (from a space that we were paying for) or find a new home. We hadn't finished unpacking & we did not even know what we had done wrong. … We felt this warning to be wholly unfair, unjust, interrogating & unlawful … We took this warning letter as a threat to our livelihood,. It made us feel extremely uncomfortable and I threw up with nervousness.
…
… Natalee & I were shocked & could barely eat or rest due to stress caused from this notification.
…
…We felt this email & accompanying warning letter to be wholly unfair & unjust, unlawful, fabricated & bullying."
I will address those claims below. Mr Lewin set out his responses to the various complaints in an email that was annexed to his statutory declaration, but it is not necessary for the Tribunal to set that response out in detail in this narrative.
After receiving the 10:26 AM email from the Agents, the Tenants moved their goods from the unit 5 car space to the footpath for the Council to collect. However when they did so the goods left behind green and purple coloured stains on the cream-coloured brickwork around the car space, and blue coloured stains on the concrete floor of the car space, as shown in photographs produced to the Tribunal..
[13]
Claim 1: the landlord's general obligation to provide the residential premises in a reasonable state of cleanliness and fit for habitation - s 52(1) of the RT Act
Applying the law to the facts as found above, the Tribunal is satisfied that the Premises were fit for habitation when they were provided to the Tenants at the start of their tenancy. The Tribunal is not satisfied that the mould which was found on the walls of the bathroom, above the shower and around the mirror, rendered the Premises uninhabitable. The Tribunal particularly notes that the mould on those walls was removed by cleaning at the start of the tenancy. In these circumstances, the Tribunal is satisfied that the small area of mould around the shower and the window in the bathroom did not make the Premises unfit for habitation.
However the Tribunal is satisfied that the parts of the 2 walls concerned were not reasonably clean to the standard required by subsection 52(1) of the RT Act. The Tribunal finds that the situation in the present case most closely approximates the situation in Melnik v Gudde [2009] NSWCTTT 664, described above. The Tribunal is also satisfied that the vertical blinds in the kitchen, lounge room and bedrooms were not reasonably clean to the standard required by subsection 52(1) of the RT Act.
Accordingly, this part of the claim is successful. I will deal with the issue of compensation below.
[14]
Claim 2: the prohibition on the landlord against interfering with the supply of services - s 52(2) of the RT Act
On the facts as found, the Tribunal is not satisfied that the Landlord or his Agents interfered with the supply of telecommunications or any other services to the Premises, within the meaning of subsection 52(2) of the RT Act. The Tribunal is not satisfied that any of the Agents' actions, as complained of, amounted to interference within the meaning of the subsection.
[15]
Claim 3: the landlord's general obligation to comply with statutory obligations relating to the health or safety of the residential premises - s 52(3) of the RT Act
The Tenants have not identified in their evidence or in their arguments that the Landlord has breached any particular statutory obligations relating to the health or safety of the Premises.
Accordingly, this part of the claim has not been made out to the Tribunal's satisfaction.
[16]
Claim 4: quiet enjoyment - s 50 of the RT Act
As set out above, the Tenants argue that their quiet enjoyment of the Premises was breached by:
1. The presence of mould in the bathroom and the dirty blinds in the Premises;
2. The ceiling light in the laundry, which was hanging down on its cable;
3. The relaying by the Agents of complaints made by the strata manager and/or other occupants in the complex about the Lewin family's conduct at the complex - including the complaints made about drinking alcohol, smoking, storing goods in the car space, the paint stains left on the walls around the car space, the correct car space to use and the use of the pool area at the complex;
4. The way in which the Agents dealt with the Tenants' enquiries about access to the MDF and the gas meter; and
5. The making of demands by the Agents for the payment of arrears after the tenancy agreement was terminated, including after the Tribunal's decision on 16 May 2018.
The Tribunal is satisfied that the presence of mould in the bathroom and the dirty blinds in the Premises were mere inconveniences only, and did not amount to a breach of the Tenants' quiet enjoyment. The Tribunal is also satisfied that the Agents attended to the ceiling light issue promptly, and that this was also a mere inconvenience, and did not amount to a breach of the Tenants' quiet enjoyment.
Secondly, the Tribunal is satisfied that the acts of the Agents, in relaying of complaints by the strata manager and/or other occupants of the complex, and in suggesting that consequences may follow in the form of termination of the Tenants' tenancy, were also mere inconveniences only, and did not amount to a breach of the Landlord's obligation of quiet enjoyment.
It is not necessary for the Tribunal to be satisfied that all of the complaints made against the Tenants were made out. However the Tribunal is also satisfied that some of the complaints would have been made out on the available evidence.
The complaints which the Tribunal is satisfied would have been made out on the available evidence included:
1. initially parking their car (and storing goods) in the wrong car apace;
2. storing goods in the unit 5 car space, contrary to the terms of the tenancy agreement;
3. The colour stains left on the common property walls and floor surrounding the car space; and
4. some (but probably not all) of the noise from the use of the pool area.
The Tribunal makes no findings as to the rights or wrongs of the other complaints against the Tenants.
In the above circumstances, it was reasonable and appropriate for the Agents to bring all of the complaints to the Tenants' attention as they occurred.
The Tribunal is satisfied that the owners corporation, the strata manager and the other occupants of apartments in the complex were not people for which the Landlord is responsible under s 50 of the RT Act.
Similarly, the Tribunal is satisfied that the the way in which the Agents dealt with the Tenants' enquiries about access to the MDF and the gas meter was not a breach of the obligation to provide quiet enjoyment.
Lastly, the Tribunal is satisfied that the Landlord's obligation to not interfere with the Tenants' quiet enjoyment came to an end when the tenancy agreement was terminated on 26 March 2018. The demands for arrears made after then did not breach any such obligation.
Additionally, for the reasons stated in the Ciesiolka and Shirvington cases cited above, the Tribunal is not satisfied that a demand for the payment of arrears, or the provision of letters foreshadowing termination did not amount to a breach of quiet enjoyment in this case.
This part of the claim therefore fails.
[17]
Compensation
In order to succeed on the claim, the party claiming the loss must prove their loss. This requires them to prove the amounts that they have expended, and the amount of any damage that they have suffered as a result of the breach.
As noted above, the Tenants claim compensation of $15,000 under s187(1)(d) of the RT Act, for economic loss, including moving expenses, cleaning costs and utilities ($5,500), non-economic loss, including the cost of inconvenience and stress, etc ($4,500) and disappointment and distress ($5,000). The claim includes unspecified amounts for stress, sleeplessness, fatigue, depression and anxiety.
The only part of the claim that has succeeded is the claim that the Premises were not reasonably clean at the start of the tenancy, due to the presence of mould on 2 walls in the bathroom and the grimy window blinds in the lounge room, kitchen and the bedrooms.
[18]
The claim for economic loss
The Tribunal accepts that the Tenants spent time to clean those walls and those blinds in the first 4 days of their tenancy. However no evidence has been provided of the amounts expended.
Further, the Tribunal is not satisfied that the other amounts claimed under the "economic loss" head properly arose as a result of the successful part of the claim, or have proved to the required standard. In particular, the Tribunal is not satisfied that any of:
1. The claims for costs relating to finding new accommodation, including packing, removalist costs and expenses, internet and travel costs to find a new home, extra rent on new accommodation;
2. The claim for utilities connections; or
3. The claim for time off work,
arise on the only successful ground.
Equally, the Tribunal is not satisfied that the Tenants are entitled to be compensated for their personal time and labour incurred in cleaning the Premises - either at the rate claimed ($30 per hour, which has not been proved), or at any other rate.
In the circumstances, the Tribunal estimates that likely cost of cleaning products used by the Tenants to bring the bathroom walls and the blinds up to the standard required by the tenancy agreement at the commencement of the tenancy, to be in the order of $50.
Consequently, the Tribunal awards a nominal amount of $50 as compensation on the successful part of the claim.
[19]
The claims for stress/distress, anxiety and non-economic loss
The Tribunal is not satisfied that these amounts are compensable on the part of the claim that has succeeded. On the principle in Hadley v Baxendale [1854] EWHC 170, a breaching party is liable for all losses that the contracting parties should have foreseen, but is not liable for any losses that the breaching party could not have foreseen on the information available to him. the Tribunal is not satisfied that the Landlord could have foreseen these items arising from the breach found by the Tribunal.
Further, the Civil Liability Act 2002 (NSW) (the CL Act) places significant restrictions on the amounts which the Tribunal can award in respect of personal injury damages:
1. "Personal injury damages" is defined in s 11 of the CL Act to mean damages that relate to the death of or injury to a person.
2. "Injury" is defined in that section to include impairment of a person's physical or mental condition.
3. Section 11A of the CL Act applies Part 2 of the Act to an award of personal injury damages, except an award that is excluded under section 3B (which does not apply in this case).
4. Section 16 provides that no damages may be awarded for non-economic loss unless the severity of the non-economic loss is at least 15% of a most extreme case. Beyond that amount, a series of statutory limitations applies.
The Tribunal is bound by the decisions in Insight Vacations Pty Ltd v Young (2010) NSWCA 137 and Flight Centre v Janice Low [2011] NSWSC 132. The effect of these two cases is that because injury to feelings, distress, disappointment and inconvenience can constitute an impairment of a person's mental health, they amount to personal injury, and are caught by the definition of personal injury in the Civil Liability Act 2002. In order for these to be compensable, the 'injury" must be at least 15% of a most extreme case.
There is no evidence that Mr or Mrs Lewin has suffered an injury which would put them over the 15% threshold. For this reason, no compensation for non-economic loss would be payable on this claim: McLachlan v Patfield (Tenancy) [2013] NSWCTTT 171 at [9].
The Tribunal therefore declines to make the compensation orders sought for the claims of injury, illness, stress/distress, anxiety and non-economic loss.
[20]
Conclusion and orders
For these reasons the Tribunal orders as follows:
1. The respondent, Beilei Zhou of C/- Century 21 Real Estate Carlingford, 314 Pennant Hills Road, Carlingford NSW 2118 is to pay the applicants, Hank and Nipaporn Lewin of 2 Paul Place, Carlingford NSW 2118, the sum of $50 within 28 days.
2. The application is otherwise dismissed because, having considered the material placed before it, the Tribunal is not satisfied (at the civil standard of proof) that the grounds required to make the orders sought have been established.
[21]
Civil and Administrative Tribunal of New South Wales
[22]
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: 21 December 2018
Later on 22 February 2018, about 5:09 PM, the strata manager sent another email to the Agents attaching 3 photographs of the unit 5 car space and the surrounding common property, showing the stains on the brickwork around the car space, and on the floor of the car space. The email stated in part, "The tenants will need to clean the walls ASAP. Otherwise we will do it for them and charge".
The Agents sent an email to the Tenants at about 1:24 PM the next day, 23 February, attaching copies of the 3 photographs provided by the strata manager and extracting various parts of the strata manager's email, requiring the Tenants to clean the walls around the car space ASAP "to avoid charges from strata".
Mr Lewin takes objection to the email, stating at paragraphs [37]-[38] of his statutory declaration that:
"…This is a clear interference of our privacy as the car space was property that we were paying for & not common property. As such, Century 21 had caused interference to our privacy & comfort, & at the least permitted interference to our privacy & comfort through transference of complaint from strata.
… We were intimidated & pressured into cleaning the wall with threat of financial cost if we did not. We were uncomfortable & frightened & felt powerless. It appeared that strata did not know what was common property & Century 21 simply agreed with this complaint & felt the need to pass the threat to us, disturbing our peace & comfort."
I will address that below, however the Tribunal is satisfied from examining the strata plan for the complex that the walls and concrete floor of the car space were common property, and that only the airspace between them was part of lot 5.
Later that afternoon, the Tenants attempted to scrub the paint off the brick wall, and generally removed most of it. However a light purple hue remained on the wall, as shown in the photographs in evidence.
On 26 February 2018, at about 2:03 PM, the strata manager sent an email to the Agents stating that the cleaning of the walls around the car space was not satisfactory, because of the purple hue on the bricks.
On or shortly before 1 March 2018 Mrs Lewin used the complex's pool with her two children. She took some photographs of them playing in the pool while she was there.
On 1 March 2018, about 3:18 PM, the strata manager sent a further email to the Agents, making a further complaint against the Tenants. This time, the complaint was that the Tenants had allowed a number of children into the pool area unsupervised and with body boards, which were used to create waves in the pool and cause water to escape from the pool. The email also alleged that they had created a lot of noise by screaming and yelling, which affected a number of units within the complex because of the positioning of the pool in the centre of the complex. The strata manager suggested that because of the number of complaints regarding them, the Tenants should be removed from the complex.
The Tribunal is satisfied that the children referred to in that email were probably unconnected with the Tenants, and not under their control.
On 2 March 2018, at about 9:24 AM, the Agents sent a further email to the Tenants, repeating the strata manager's comments from that email and stating, "under the circumstance, we will issue you a termination notice due to breach of law on Monday 5th March and you will need to vacate your property within 14 days".
Mr Lewin called the Agents by telephone and disputed that the children concerned were his. He requested a copy of the strata by-laws. He argues in his statutory declaration that the Agents said to him, "Yeah well, strata have a habit of making trouble". The Tribunal makes no finding about that statement.
Mr Lewin further argued at paragraph [43] of his statutory declaration that:
"Natalee and I now felt so uncomfortable living with our children in this apartment complex & under fantastic financial & emotional strain at the hands of Century 21, who had effectively encouraged strata to trample our comfort & peace & thereby breaching terms of our lease & the Residential Tenancies Act 2010 that we wanted to leave immediately, that day.
The Tenants responded by email at 3:02 PM the same day, stating again that the children concerned were not theirs, and asking that the strata manager check their video recording. Also on 2 March 2018 at about 3:25 PM, the Tenants sent an email to the Agents asking where they can find the gas meter for the Premises, and asking how to gain access to the main distribution frame ("MDF"), for the internet company to connect to.
That evening, Mr Lewin went to work and came home halfway through to shift. At paragraph [48] of his statutory declaration he asserts that he did not consider it safe to drive the bus that night, as he was "suffering nervousness, physical and mental discomfort, depression and anxiety and stressed about having nowhere for my family to live and no money to cover costs for new accommodation". He returned home about 10 PM and found that Mrs Lewin was also, to his observation, emotionally distraught and uncomfortable. They discussed the situation. They decided to search for new home, and to depart the complex as soon as possible. The Tribunal accepts that they were emotionally upset about events that have occurred.
On 3 March 2018 the Tenants inspected 8 houses in the Carlingford area and applied for new accommodation. They made phone calls to friends and family to borrow money. Mr Lewin then started work around 4 PM. While he was at work he had a bus accident in the Sydney CBD. He again came home halfway through his shift. This prevented him from receiving a double rate of pay for the remainder of the shift.
On 5 March 2018 the Tenants lodged a complaint with NSW Fair Trading, alleging that the Landlord/the Agents had terminated the tenancy agreement in breach of the agreement. As the evidence discloses, the Landlord/the Agents had not taken any step to terminate the tenancy agreement in the manner alleged by the Tenants.
The Tenants also sent a letter to the Agents, referring to the Agents' email of the previous Friday and purporting to terminate the tenancy agreement for breach by the Landlord. On page 2 of the letter they stated:
We have sought legal advice regarding above. We hereby advise you of the termination of our residential agreement as a result of breach of agreement by the landlord and under extraordinary grounds.
This matter has been referred to Residential Tribunal NSW and/or NSW Civil and Administrative Tribunal (NCAT) and/or Aboriginal Tenants Advice and Advocacy Services and NSW Fair Trading, and as such the date of notice of vacancy remains not applicable, with a minimum of 14 days.
We advise that we have applied to Residential Tribunal NSW and/or NSW Civil and Administrative Tribunal (NCAT) and/or Aboriginal Tenants Advice and Advocacy Services and Fair Trading seeking;
- Vacate date to be determined at finding a suitable residential address;
- All monies to be returned to the tenant including bond within 48-hours of vacate;
- Reimbursement to the tenant of all associated costs, including but not limited to…
We apologise that we have been harassed at this residential address and feel strongly that we - including our young children - are unable to remain tenants on account of continued emotional harassment and intimidation by the owner/s and/or their landlords and/or their agent/s.
Please accept this letter as formal notification of our intent to vacate the premises at a date to be agreed and with above costs to become the liability of the owner/s and/or their landlords and/or their agent/s at the discretion of abovementioned the tribunal etc.
The Agent responded at 2:56 PM that afternoon, stating in part:
We have no problem going to tribunal in regard to this matter. All your claims are absolutely ridiculous and it is quite within our rights as Managing Agent, to ask you to live in a reasonable manner so that every other tenant in the building can enjoy their home life as well. We have managed many units in this book for a number of years and never ever had the amount of [complaints] we have experienced since you have been tenants of this property in such a short time.
…
All we did was forward you the [complaints] from Strata, this office simply forwarded on what we were instructed to do."
That afternoon Mrs Lewin obtained a medical certificate from a local medical centre, which stated that she has "a medical condition and will be unfit for work from 05/03/2018 to 09/03/2018 inclusive". The same doctor prescribed Larry Lewin Salbutamol (also known as Ventolin) the same day.
On 8 March 2018, at about 2:59 PM, the Tenants sent a 5-page response to the Agents' email of 3 days earlier. The email asserted that the Tenants had been "deliberately targeted by strata" because of their aboriginality. It also asserted that the Tenants were waiting for a response to a previous email sent to the Agents regarding (amongst other things) a copy of the strata by-laws ("which we believe we have not received"); lodgement of the bond online; confirmation of the correct car space; suitability of parking a boat in the car space; access to the main distribution frame (MDF) and gas meter; reimbursement for keys which they had cut; whether the Landlord intended on sending a termination notice; and whether strata had checked their video footage for the most recent pool complaint. The email also raised, for the first time in the evidence, assertions that there was dirt or mould in the Premises ("in most rooms, especially the bathroom"). Lastly, it asked the Agents whether a vacation date of 26 March 2018 would be agreeable, and sought that the Agents/the Landlord agree to pay $752, to cover half the total cost of 2 days wages, moving costs to and from the Premises, electricity connection costs and additional data charges used to research their rights with Fair Trading.
Later, at 4:28 pm that day, the Tenants sent the Agents an email annexing a series of photographs, stating "Please see attached some of the mould on the walls bathroom and blinds pictures as promised!". As I have noted above, the email does not identify when those photographs were taken, and the Tribunal is not satisfied that they were taken at the start of the tenancy.
On 9 March 2018, about 4:32 PM, the Agents responded to that letter by email, enclosing copy of the strata by-laws and stating that "today I had a conversation with Hank and hopefully we can sort this out, so you are comfortable at your home in Carlingford". The email addressed the other points raised in the previous letter, including the location of the gas meters and by stating that "the MDF is accessible only to the electricians with a special key". The letter further stated that the Agents would not at this time be issuing a termination notice to the Tenants.
On 6 March 2018 the Tenants received email notification that the application for tenancy at another address had been approved, at the (slightly higher) rental of $550 per week. They borrowed the money for the rental deposit from Mr Lewin's mother.
On 12 March 2018, about 9:20 AM, the Agents sent an email to the Tenants containing a copy of the strata by-laws. At 12:24 PM that day, they sent a further email, advising that they had refunded $14.30 to the Tenants' account in reimbursement of the costs of cutting the key. The email addressed the mould issue raised in the email of 8 March 2018, by stating:
Regarding the mould on the blinds and walls, please try your best to clean the mould stains and ventilate the room as much as possible. It looks like a ventilation issue and normally [happens] during the winter, we have not heard from our previous tenant during summer time. It will prevent … re-grow of mould if you can ventilate your property as much as you can.
The Tenants replied by stating that (amongst other things) they took all the "before" pictures of the Premises the first day they moved into it, but in the Tribunal does not accept this for the reasons stated above.
On 14 March 2018, at about 2:14 PM, the Tenants sent a further email to the Agents, confirming that they intended to vacate the Premises and hand back the keys by 5 PM on Monday 26 March 2018, and inviting the Agents to complete a final inspection of the Premises at 1:30 PM on that date. The email rescinded their previous offer to cover 50% of the costs and foreshadowed that the Tenants would apply for full reimbursement of their costs, which it said were escalating due to the necessity for them to relocate. It concluded by saying, "To avoid Tribunal hearing, you can provide us with Termination Notice effective 26 March 2018 and deposit total amount $1,524.52 to cover our expenses into our nominated bank account at your earliest opportunity and not after 5 PM, Monday 19 March 2018".
On 26 March 2018 the Tenants vacated the Premises and returned the keys to the Agents, bringing the residential tenancy to an end. In the weeks that followed, the Agents made various demands for rent arrears. Mr Lewin claims that these messages amounted to harassment by the Agents.
Also on 26 March 2018, the strata manager sent an email to the Agents pressing that the purple hue discolouration on the wall around the unit 5 car space have not been repaired. By a further email, the strata manager requested that the Agents have this repaired ASAP.
11 April 2018 the strata manager provided a quote to the Agents for cleaning the brickwork, at $165 inclusive GST.
On 18 April 2018 the Landlord lodged a claim against the Tenants in the Tribunal, claiming compensation for loss caused by the alleged "abandonment" of the Premises, in the sum of $3,180 plus $165 for car park cleaning fees, and orders for the payment of the rental bond to him. On 16 May 2018 the Tribunal granted that application in part, by making orders that:
1. The Tenants pay the Landlord $605.71 for unpaid rent;
2. The Landlord be paid $605.71 from the bond, which is to be credited against the money order. Any balance of the bond is to be paid to the Tenants.
3. The claims for cleaning charges and break lease fee are dismissed as the landlord disclaimed the tenancy under s81(4)(g) of the RT Act.
As noted above, the Tenants then lodged this application with the Tribunal.