May v Homes Victoria (Residential Tenancies) [2024] VCAT 548

For the written reasons provided, VCAT orders and directs:

1. This is a claim for compensation made by the renter due to losses said to be occasioned by breaches of duty by the rental provider to maintain the premises in good repair. It relates to the presence of mould and of asbestos at the rented premises.
2. The parties entered into a residential rental agreement in May 2017 and this ended in September 2022.
3. The historical presence of asbestos and of mould in the rented premises is not disputed. However, what is in dispute is whether the Respondent was in breach of the residential rental agreement in how it addressed the concerns raised concerning the condition of the rented premises at different times. Accordingly, the questions for the Tribunal are:
   1. whether the Respondent within a reasonable time investigated and took appropriate action following notification from the Renter of a repair issue; and
   2. Whether the presence of exposed asbestos, or mould, was due to any breach of duty on the part of the Respondent
4. A tabulated chronology provide by the Respondent helpfully sets off the following sequence:

Respondent's contractor attempts to get access for assessment, fails, leaves card

Respondent authorises removal and repair works to be done

Respondent reduces the rent to $15 from this date once aware

Respondent changes the locks after reported break in at premises whilst renter incarcerated

Respondent sought access to the premises and access was not given

Renter's lawyer writes regarding statusof asbestos removal

Renter consents to lock change so that premises can be access for works in his absence

Respondent informs renter works are done and he can return

Renter gives permission for access via key in key safe

Reports finding mild mould in bedrooms and hallway, and extreme mould in lounge room on lounge contents

Finds urine, faeces and mould growth in carpeted areas

Recommends stage 1 works of using anti- microbial fog, disposing of unsalvageable items (with renter) and removing carpets

Contractor attends and bags and places all items (contents and furniture) in kitchen (to give access to remaining rooms)

Stage 2 works of new blinds and carpets were undertaken and completed on this date

1. The Tribunal accepts that a duty to repair is a strict and absolute obligation which requires the provider to identify and rectify any defects of which he or she is aware or ought to be aware[1].
2. However, in the normal course of events a breach on the part of the provider is not manifested solely by the relevant defect coming into existence. Rather, a breach of the duty to maintain premises in good repair may be established by reference to the nature and quality of a response, if any, by the provider to remedy the defect. The Tribunal accepts that the provider will not generally be in breach of this duty if it investigates and takes appropriate action within a reasonable time of the notification of the defect[2].
3. It is furthermore clear that the provider will not be in breach if the renter precludes the repair being done by failing to give access.[3]
4. The Tribunal has carefully accepted the Renter's claims, articulated in written submissions and in evidence provided over the course of two hearings. However, ultimately the Tribunal is unable to see how it is made out that the respondent has breached any duty to maintain the premises in good repair, by reference to its documented responses to repair matters raised, which the Tribunal considers were provided as proactively as possible in view of issues concerning access to the premises at different times, including during a period when the Applicant had been incarcerated.
5. The Tribunal finds respondent has taken all reasonable steps within its power to remedy. The Tribunal further finds that to the extent rental rebates or reductions were applied at relevant periods, these do not constitute admission of liability by the respondent for any further compensation. These are simply part of a policy developed by the government department responsible for social housing in Victoria, for circumstances when amenity in public rented premises is affected. The Tribunal considered that to the extend any compensation may have been due, it has already been effectively recompensed by these rental adjustments.

1. In any event, establishing a right to compensation, regardless of a loss that may be suffered, depends upon establishing a breach by the party against whom compensation is sought. It is trite to say that in the absence of a breach, no compensation can be considered or quantified.
2. This is such a case. The actions of the Respondent concerning both the asbestos concern and the subsequent mould problem were as practical as could be expected in all the circumstances, and having taken all reasonable steps to remediate, consistently with their repair duty under section 68 of the Act, such that no breach is established by the renter that would give rise to any consideration of compensation.
3. It follows that the renter's application must be dismissed.

[1] Shields v Deliopoulos [2016] VSC 500, [30] (Daly AsJ).

[2] Eskander v Catanchin (Residential Tenancies), [2014] VCAT 381, at [19].

[3] Linton-Smith v Director of Housing (Residential Tenancies) [2020] VCAT 1355, [493].