Murphy v Lewkovitz; Lewkovitz v Murphy

& Sons Pty Ltd v McLeish (1970) 91 WN (NSW) 268 Goodhue v Volunteer Marine Rescue Association Incorporated [2015] QCA 234 Gray v Queensland Housing Commission [2004] QSC 276 Hampel v South Australian Housing Trust [2007] SADC 64 Hoblos v Alexakis [2021] NSWCA 126 Jones v Bartlett (2000) 205 CLR 166; (2000) 176 ALR 137; (2000) 75 ALJR Kuligowski v Metrobus (2004) 220 CLR 363; (2004) 208 ALR 1; (2004) 78 ALJR 1031; [2004] HCA 34 Lewin v Zhou [2018] NSWCATCD 54 Libra Collaroy Pty Ltd v Bhide [2017] NSWCA 196 Loose Fit Pty Ltd v Marshbaum [2011] NSWCA 372 Makita v Sprowles (2001) 52 NSWLR 705 March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 Nelson-Hauer v Calman (1954) 73 WN (NSW) 449 New South Wales Department of Housing v Hume bhnf Donna Hume & Anor (2007) Australian Tort Reports 81-879; [2007] NSWCA 69 Northern Sandblasting Pty Ltd v Harris [1997] HCA 39; (1997) 188 CLR 313; (1997) 146 ALR 572; (1997) 71 ALJR 1428 O'Brien v Roberts [2012] NSWCTTT 372 Proudfoot v Hart (1890) 25 QBD 42 Rendlesham Estates plc v Barr Ltd [2014] EWHC 3968 Rhesa Shipping CO SA v Edmunds [1985] 1 WLR 948 at 955; [1985] 2 All ER 712 Roberts v Bell [2001] NSWRT 6 Roberts v NSW Aboriginal Housing Office [2017] NSWCATAP 9 Sakoua & Anor v Williams (2005) 64 NSWLR 588; [2005] NSWCA 405 Summers v Salford Corporation [1943] AC 283 Summers v Salford Corporation [1943] AC 283 Tito v Wadell (No 2) [1977] CH 106 Varricchio v Wentzel (2016) 125 SASR 191 Texts Cited: Allan Anforth, Peter Christensen, Christopher Adkins, Residential Tenancies Law and Practice New South Wales (Federation Press, 7th ed, 2017) McGregor on Damages by James Edelman, revised by Simon Colton and Jason Varuhas (2021) 21st Edition Category: Principal judgment Parties: Christopher Murphy (Plaintiff/Cross Defendant) George Lewkovitz and Ilana Lewkovitz (Defendants/Cross Claimant's) Representation: Counsel: Mr D Hand (Plaintiff/Cross Defendant) Mr A Maroya (Defendant/ Cross Claimant)

Solicitors: Kalantzis Lawyers (Plaintiff/Cross Defendant) Allsop Glover Lawyers (Defendant/ Cross Claimant) File Number(s): 2017/00327881

Judgment Witnesses Proceedings The Facts Dr Lewkovitz's Letter dated 6 April 1990 to Woollahra Council as to Rising Damp Tenancy of Donald and Christina Graham Plaintiff's Tenancy Leather Jackets Further Water Penetration Mould in March 2017 Zenith Mould Rescue MouldLab Prime Restorations Stuart Skeoch Tall Ideas Pty Ltd NCAT Proceedings, Tenancy Termination, Property Renovation and Sale Ray Fakhoury PLAINTIFF'S CLAIM Did the Defendants comply with s 52 of the 2010 Act at the commencement of the tenancy? The Issue Plaintiff's Submissions Defendant's Submissions Consideration Did the Defendants comply with section 63 of the 2010 Act? The Issue Plaintiff's submissions Defendant's Submissions Consideration Did the Defendants contravene section 26 of the 2010 Act? The Issue Plaintiff's Submissions Defendant's Submissions Consideration Common Law Duty Duty of Care Breach of Duty The existence of dangerous and patent defects Consideration The Defendants knew, or should have known, about the defects Failure of the Defendants to take reasonable steps to repair the defects or otherwise to prevent the harm from occurring Section 30 of the ACL The Issue Plaintiff's Submissions Defendant's Submissions Consideration Causation DAMAGES Destroyed Items Defendants' Submissions Plaintiff's Submissions in Reply Consideration Other Expenses Items for Mould Remediation Consideration Artworks Plaintiff's Submissions Defendant's Submissions Consideration CROSS CLAIM ORDERS

Judgment

1. These proceedings relate to a claim brought by the Plaintiff tenant (Christopher Murphy) against the First and Second Defendants (George and Ilana Lewkovitz) landlords, for damage occasioned to his property by mould during his occupation of the tenanted residential premises at 8 Rivers Street, Bellevue Hill in the State of New South Wales (the property). [1]
2. The Defendants have in turn cross claimed an amount of $41,393.61 for unpaid rent for the period of 5 April 2017 to 21 July 2017. [2] The Plaintiff contended that he was not under any obligation to pay the said rent in circumstances where the Defendants had breached the terms of a tenancy agreement by providing premises that were not in: 1. A reasonable state of cleanliness and fit for habitation; and 2. In a reasonable state of repairs such that it remained fit for habitation. [3]
3. Alternatively, the Plaintiff sought a set off from the amounts claimed by him. [4]
4. The Plaintiff's claim pleaded: 1. Breaches of section 52 and 63 of the Residential Tenancies Act 2010 (NSW) (the 2010 Act); [5] 2. Breach of section 26 of the 2010 Act; [6] 3. Breach of the common law duty of care; [7] and 4. Breach of sections 20 and 30 of the Australian Consumer Law [8] (the ACL).
5. In opening, the Plaintiff foreshadowed only one claim under the ACL. [9] No submissions were ultimately advanced in respect of the alleged breach of section 20 of the ACL and accordingly this matter will be considered no further.

Witnesses

1. Apart from the respective parties, oral evidence was given by Ms Christina Graham a previous tenant of the property.
2. It is apparent that the Plaintiff and Ms Graham have fallen out with the Defendants and the respective positions of each were entrenched. There were times during cross examination where I had cause to draw to the attention of witnesses a lack of responsiveness to questioning. [10]
3. In the circumstances, I have sought to carefully examine each witness's evidence alongside each other and the documentary evidence.
4. As will become apparent the Plaintiff relied on a number of expert reports. The Defendants did not rely on any expert evidence of their own nor take steps to require the attendance of expert witnesses relied on by the Plaintiff. The Defendant further elected not to take up a proposal to cross-examine the Plaintiff's expert witnesses if available by telephone. [11] The Defendants advanced no objection to expert reports other than to the quantum report going to damages prepared by Mr En-Lai Chan; a loss adjuster. After being provided with some supporting receipts the Defendants withdrew that objection reserving the right to make final submissions about what were described as usual matters such as weight. [12]

Proceedings

1. The matter was heard before me on between 8 and 11 February 2021. Following discussions between the parties, I made consent orders on 11 February 2011 as to a timetable for filing of written submissions. [13] By consent, I made chamber Orders on 26 February 2021 extending the time for each party to file their written submissions. The parties indicated on 11 February 2021 that they were content to rely on written submissions except to the extent the Court may otherwise require. On 27 May 2021, the parties were invited to provide submissions as to whether the Civil Liability Act 2002 (NSW) (the 2002 Act) applied and if so, how. Both parties forwarded additional written submissions in response.

The Facts

1. The Defendants were at all times the registered proprietors of the property. They had owned it for 40 years and had been residents in it for around 30 years. [14] During that time there was evidence of previous incidence of rising dampness affecting the residence.

Dr Lewkovitz's Letter dated 6 April 1990 to Woollahra Council as to Rising Damp

1. On 6th of April 1990, the First Defendant wrote to Woollahra Municipal Council in connection with a building application that he was advancing. In that correspondence, the First Defendant stated: "Further, the above residence has problems with damp in the south facing wall. This requires as a solution the application of an external membrane to the entire house. It is intended that this membrane be applied when the building works and the above B.A. are completed. Delays in the B.A. have resulted in continued hardship with damp penetration not being able to be resolved". [15]
2. The floor plan of the subject property was tendered. [16] The First Defendant marked on the floor plan at the bottom left hand corner side of the residence the area to which he was referring in his letter of 6 April 1990 describing this as the "southern wall". [17]

Tenancy of Donald and Christina Graham

1. In about 2011, Donald and Christina Graham entered into a residential tenancy in relation to the property. Ms Graham gave evidence that at that point, the Defendants told them to "be aware that there would be mould and damp in the downstairs garage consistent with Sydney humidity." [18] Ms Graham said that both Defendants told them not to use the single garage because of the mould problem there but to use the double garage instead. [19] Ms Graham stated that the Defendants also told them they "had to" renovate the main bedroom and the attached bathroom but offered no explanation as to why. [20] I interpret "main bedroom" as a reference to the "master bedroom" which was adjacent to the southern wall marked on the aforesaid floor plan.
2. Email correspondence between Mrs Graham and the Defendants was tendered. [21] On 7 November 2012, Ms Graham emailed the First Defendant inter alia stating: As previously advised we have on-going humidity problems in our bedroom/walk in robe. This results in our de-humidifier taking out 20 litres of water every two days. Putting aside the additional electricity cost the inconvenience of having to do this is not acceptable. Please arrange for this problem to be fixed immediately. [22]
3. On or about 30 November 2012, Ms Graham stated that she had a conversation with the Second Defendant where she complained about what she perceived and observed as "constant damp and mould problem". She stated that the Second Defendant said words to the effect of: "I have lived here for 32 years without a damp problem in the bedroom. The soil underneath had no moisture and was sandy. My builder said there was no damp problem. It is the humidity in the air. Having to empty out damp absorption boxes once a month is hardly an onerous task". [23]
4. At one point, Ms Graham stated that the First Defendant acknowledged that there was a mould problem. She stated that he came over several times to the house. She showed him her bags that she had to throw out that had mould growth on them and her clothes that she had to take to the drycleaner because they had leather jackets that were full of mould. [24] She later added that "there was mould growing on everything that we owned." [25]
5. Ms Graham stated that on one occasion the First Defendant brought a builder and he stated "Look, I think there's evidence of rising damp." [26] In re-examination, Mrs Graham stated that after she showed the builder where the mould was and where they had to take water out the builder responded "no wonder you've got mould problems." [27] Although she omitted this in her affidavit evidence she stated that it was a matter of distinct re-collection as she discussed it with her family and "they have the same recollection." [28] She rejected the suggestion that her email indicated that the builder indicated the symptom but not the cause. [29] Ms Graham referred to the conversation with the builder as taking place during the second half of the 2 year tenancy. [30]

Plaintiff's Tenancy

1. The Plaintiff's evidence was that in July-August 2013, he engaged Farquharsons Executive Rentals to find a quality place for his wife and children and to allow him to work from home. [47] On 26 July 2013, the Plaintiff entered into a lease for 12 months commencing 5 August 2013 with a 12 months option and ascertained that the Defendants were self-managing the property. [48]
2. In August 2014, the tenancy agreement was extended for a further period of 12 months. [49]
3. In August 2015, the Plaintiff stated that he entered into a new lease on the same terms and conditions with the exception that the rent was increased by 5%. [50] The new tenancy agreement for 12 month is in fact dated 3 July 2015 although it commenced on 5 August 2015. A condition report in respect of the property was not prepared by the Defendants and was not provided to the Plaintiff. [51]

Leather Jackets

1. The Plaintiff gave evidence that around the time of the 2015 lease renewal he and his partner (Ms Agnes Bruck) were standing in the walk in wardrobe area which had floor to ceiling robes with mirror sliding doors on three sides and where he kept his leather jackets in a partly concealed wardrobe. He stated that he then showed the First Defendant that he had just discovered mould on his leather coats. The First Defendant responded with words to the effect: "It is an air circulation issue. You should open the window at the end of the walk in wardrobe corridor. Keep the bathroom door shut. It is a 'ventilation problem'. It is your fault for not keeping the air circulating". [52]
2. He stated that the First Defendant did not suggest that there was any danger in mould. He accepted what the First Defendant said as he knew he was an Ear, Nose and Throat Specialist. During the inspection, when the Plaintiff showed the mouldy jackets, the Plaintiff stated that the Second Defendant said words to the effect "Sydney is a humid place. You should buy a packet of Damp Rid'. That is how I deal with the damp". [53] The Second Defendant denied saying these words adding that the only occasion on which she recalled discussing the topic of humidity was when she met the "Murphys" one summer at Westfield at Bondi Junction. [54]
3. The Plaintiff said that he took the leather jackets to the backyard and scrubbed them with vinegar and water to remove the mould and left them in the sun for a few days on the pool fence before putting them back in the hall cupboard. He stated that Ms Bruck bought a packet of Damp Rid and he left the windows open as the First Defendant had said. In addition, in the bathroom area, two windows were never closed again except when they were absent. The hall cupboard window was open during most days but closed it at night to avoid mosquitoes.
4. In cross examination, the Second Defendant said that she considered the leather jackets to be "prone to that [mould] if they weren't regularly ventilated". [55]
5. Whilst the Plaintiff was cross examined as to his own evidence, it was not put to him that the incident did not occur. Rather, it was suggested that after he had sought to treat the mould using amongst other things a hose, he couldn't exclude the possibility of residue moisture. The Plaintiff stated that he washed the jackets as best as he could scrubbing away, treating them with vinegar and expecting "these invisible and scentless spores would be dealt with." He said that he then hung them on the fence on wire coat hangers in the sunshine for probably ten days. [56] According to the Plaintiff, they were absolutely dry and that there was no suggestion of any water being carried. [57] Thereafter, he said that he was in and out of his cupboard getting other things but didn't see any mould on them again until 2017. [58]

Further Water Penetration

1. The Plaintiff gave evidence of other defects in the property.
2. On 3 August 2013, the Second Defendant sent an email to Ms Bruck stating that they would organise a plumber to repair the leak in the garage that was sighted the previous day. The Plaintiff stated that this was not attended to prior to his and his family's departure. [59] The First Defendant stated that this has been a long standing problem which defied several extensive attempts at rectification but despite the work the leakage continued sometime after each repair. [60]
3. The Plaintiff gave further evidence of a plumbing leak under the kitchen sink and a leaking tap. He stated that he asked the First Defendant to get a tradesman to repair it however he said he was busy and suggested that the Plaintiff tape it up. The Plaintiff stated that nothing was done and it stayed leaking until he ended up sliding on the floor sustaining injury on 30 November 2015. [61]
4. The First Defendant conceded that the issue of the leak had been reported on one occasion only and he thereafter sought to call the plumber on several occasions. He did not dispute that the repair had not been otherwise attended to. [62]
5. There was also a skylight in the kitchen which the Plaintiff asserted had water pouring in each time it rained, and had lifted and moved in the wind. The Plaintiff stated that he notified the First Defendant but nobody came to fix it. He stated that he climbed on the roof and used a bulldog clip and a child's screw toy to hold it down and they were still there when he vacated the property. [63]
6. The First Defendant responded that these issues were not identified or reported. He asserted that tile breakages were noted on roof inspection when the occupancy was released and that this would have caused moisture penetration of the kitchen in the meantime and damage to the parquetry floor. [64] Further, the First Defendant records that he was advised on one occasion only as to water dripping from the kitchen lights and not subsequently. He added that after the commencement of the proceedings the Defendants were advised that this had happened on more than one occasion. [65]
7. On 24 August 2016, the Second Defendant wrote to Ms Bruck via a David Stern confirming agreement to extend the lease by 12 months ending on 5 August 2017 on the monthly rental of $11,626.00 and that the rental conditions remained unchanged. [66] The Plaintiff agreed to take up the property for a further year. He did not recall signing a residential lease but did recall accepting the offer. [67]

Mould in March 2017

1. On 4 March 2017, the Plaintiff advised the Second Defendant: "There is a pool of water in the downstairs bedroom wardrobe. The damp destroyed my expensive leather jackets from Paris and New York. I accepted your husband's guess it might have been shower damp but in fact despite our moisture absorbers in this heavy rain it has come up through the floor". [68]
2. On 5 March 2017 at 6.34pm, the Plaintiff texted the Second Defendant photographs of the leather jacket with shoes and mould stating: "I treasured this jacket, also from New York. See the grey damp mould on it and the shoes. See the pic inside the robe with the wet piece of paper. See the 5 dehumidifier packets in the wardrobe situate under my clothes. See the two located where the water is now on the floor of the wardrobe at right angles to it where the track pants bottom is wet and the wet blue paper lies". [69]
3. The Plaintiff referred to track pants as starting to wick up moisture because the trouser legs of the pyjamas were in contact with the floor. He did not remove the clothing at that stage from the wardrobe. [70]
4. In any event, the Second Defendant responded on 5 March 2017 stating inter alia: "We will get an expert to look into it tomorrow and be in touch as it obviously needs to be investigated and repaired asap". [71]
5. The following morning at 11.50am, the Second Defendant contacted the Plaintiff by SMS stating: "Hi Agnes and Chris I have given Agnes's phone no to a company called AWS Sydney [redacted] who are rising damp specialists and will phone you to arrange access. I assume probably coming from under the house (?) but obviously need to find out and fix. I will contact others and give them Agnes's no. If that's ok with you. Regards Ilana". [72]
6. The Plaintiff responded: "A builder engineer said this in the kitchen is rising damp. BTW I don't speak much on the phone because each time someone calls I need to set up hearing aids and dongles. Would you please let me know how much is owing on the rent rise and how much it is per month. Best Agnes takes phone calls. I cannot hear a phone. CM". [73]
7. The Second Defendant responded: "Do you know any experts? We need to fix. I am just going off Google but have left a message for above company to contact you. We didn't know it was a problem. Llana". [74]

Zenith

1. On 9 March 2017, a representative from Zenith attended the property being a Mr Marcus Pine. [81] The quotation dated 14 March 2017 was in the sum of $14,630 and advised that: Rising damp: 6 lineal metres of wall in the dining room Disconnect the air conditioner and remove it from the wall Remove the render from the wall up to the height of the window sill Install Techdry silicon Damp Proof Course (DPC) into the lowest mortar course to the floor Re-render the wall using a salt retarder in the render mix White set over the render to match existing Refit the Air conditioner Other recommendations: At the time of inspection there was a significant mould growth in the main bedroom and robe. This is extremely unhealthy and should be remediated for mould ASAP, the room and all of the contents need to be treated for mould. There may be a few sources for the dampness in the bedroom which is causing the mould The subfloor crawl space has no ventilation, this needs to be ventilated with mechanical ventilation (quote attached) The exhaust fan in the ensuite has an exhaust fan, however this fan is not ducted anywhere, therefore it is inadequate. I recommend that an exhaust fan be fitted into the ceiling and connected to ducting which ducts to atmosphere. This may be a large job as the ceiling may need to be removed in order to run the duct Ventilation of the actual room is also important. If natural ventilation can't occur, a dehumidifier and air purifier are recommended [82]
2. Zenith identified the sources of dampness that led to the mould as the inadequate subfloor ventilation and the inadequate exhaust system in the en-suite.
3. On 10 March 2017, the Plaintiff stated that he advised the Second Defendant that he closed the downstairs bedrooms wardrobe and bathroom until the problem was resolved and had moved to a spare room upstairs with his son sharing his mother's bed until things are remedied. He further requested that he be supplied with a copy of any mould reports so that he could work out what to dispose of and what had to be cleaned. He stated that the Second Defendant responded stating she would do this but had another company coming and would report once she had heard from them. [83] The First Defendant stated that at this point it was apparent that the Plaintiff was contemplating legal action. He stated this placed pressure on both the Second Defendant and himself to complete the repairs even before the cause of the water related-difficulties was yet to be reliably apparent. [84]

Mould Rescue

1. On 24 March 2017 at 2.30pm the Second Defendant emailed Penny Tralau of Mould Rescue Pty Ltd. That email stated: Hi Penny thank you for discussing the situation in a preliminary way last night. Having issues with an aggressive tenant but I have told him you will be returning Monday to complete your inspection and that we will professionally de-mould his possessions at our expense asap. and would negotiate a rent reduction for his inconvenience and unavoidable disruption. Alternatively he can move out permanently. There are no winners in this. George and I agree the in order to expedite building works and remediate damage it should be handled by one company rather than do various trades so Horizon if you have successfully worked with them in the past and they can do it all would be a good fit. [109]
2. Ms Tralau's report dated 24 March 2017 appears to have been forwarded to the Second Defendant on 29 March 2017.
3. That report identified significant mould contamination including from rising dampness in the ground floor bedroom. That mould was described as including condition 2 and 3 mould. Condition 3 moulds were described "as an indoor environment contaminated with the presence of actual mould growth, associated spores and fungal fragments." Condition 2 moulds were described as "an indoor environment that is primarily contaminated with settled spores or fungal fragments that were dispersed directly or indirectly from condition 3 areas, and which may have traces of actual growth." Ms Tralau recommended immediate action to determine the extent of cross contamination of the rest of the home and remediation of the ground floor areas and the dining room. [110]
4. The Plaintiff stated that Ms Tralau went over the house and started by placing the leather jackets in sealed bags stating "these are a health hazard" and she took them away. He stated that Ms Tralau warned that it was not safe to inhabit downstairs and said words to the effect "it is particularly dangerous in the front bedroom suite and the front lounge room on the eastern side as the mould is very severe." [111]
5. Recounting a conversation on or about 24 March 2017 the Plaintiff described Ms Tralau advising that she was told to do whatever to fix the problem.
6. The Plaintiff then gave evidence that Ms Tralau told him that the day after she forwarded her report, the Second Defendant advised her that: "It is too much money. We have to think about it. It's a lot of money to spend just because the tenant hasn't opened a window". [112]

MouldLab

1. On 27 March 2017, samples obtained by Ms Tralau were forwarded to MouldLab for laboratory analysis. [115] The MouldLab report stated that: The levels of airborne mould detected in the samples collected from within the premises ranged from "elevated" (in an upstairs bedroom) and "high" (in other upstairs bedrooms) and "very high" (in the downstairs area) being samples from the downstairs bedroom, walk-in robe, downstairs lounge, kitchen, downstairs art/lounge and laundry. [116]
2. The label "very high" was utilised where the airborne mould spore and hyphal concentration exceed 10,000 per cubic metre. It describes that all occupants should be excluded; however, if occupants have pre-exposing health conditions a lower exclusion limit should be considered. The results included a 161,440 per cubic metre in the main bedroom and 164,747 per cubic metre in the lounge, 110,667 per cubic metre in the kitchen, 193,120 per cubic metre in the downstairs art/lounge and 166,293 per cubic metre in the laundry. The MouldLab report stated at [4.7] and [4.9]: Based on the results of the samples submitted for analysis, the levels and genera of mould detected from samples taken from within the premises taken from … constitute a health hazard … Therefore continued use of the assessed premises must not be permitted until remediated. …… The premises and its contents require remediation by an accredited remediator, employing methods in accordance with Reference 2 or equivalent. [117]
3. The First Defendant conceded that the very considerable expenses outlined by Ms Tralau for cleaning plus the many additional building works, (kitchen and other cabinets, plus other trades fees) at a time when it was still not clear as to why the house was suffering from the extensive mould that was never previously experienced, was of much concern. [118]
4. The Second Defendant stated that the quote from Ms Tralau was approximately five times the amount quoted by Prime Restoration and the difficulty was that to clean the mould without addressing the underlying problem would only result in the return of the mould. [119]
5. The Second Defendant conceded that she read the summary of the MouldLab report after being provided with a copy by Ms Tralau. She added that Ms Tralau had already provided the information to the Plaintiff and that was why he moved upstairs. She stated that to remediate the problem it was necessary to first work out where all the moisture was coming from which occurred after the Plaintiff and his family moved out. [120]

Prime Restorations

1. The report of Prime Restorations appears to be received by the Second Defendant on 28 March 2017 from Mr Greg Willis the project manager. [123] That report identified that high moisture content was emanating from the sub floor, lower section of the wall within the small toilet and cavity above the main bedroom toilet. The report identified that all items within the main bedroom, en-suite and bathroom would be subject to an inventory that would be identified as restorable and non-restorable. The items would be prepared and packaged, then housed and prepared for reinstatement. The restorable items would be decontaminated utilising a variety of methods including applying an anti-microbal and cleaning. The items would then be remediated utilising Ozone and air scrubber systems before being restored to the premises. Overall, the report indicated an estimated cost of $7,773 excluding GST. That did not include costs if found necessary of structural drying and dehumidification associated with building repairs. Nor did it include dry cleaning costs. [124]
2. The Plaintiff said that he was frustrated by the refusal of the Defendants to clean up the mould having initially offered to do so and that he was told by "Prime Mould's Greg and Omar" that they had been re-engaged to deal with the problem but the Second Defendant had tried to negotiate the work that they would do and the cost. [125] The Second Defendant denied the suggestion that she and the First Defendant did not want Prime Mould to carry out Mould Rescue's work but stated that it was first necessary to determine the cause of the mould. [126]
3. The Second Defendant accepted that having informed the Plaintiff that she was prepared to deal with the mould she did not proceed with the Prime Restorations quote. In cross examination, she stated her reasons as follows: "I would've, but by that stage Mr Murphy was becoming increasingly aggressive, demanding, he was sending me ten emails a day starting at 5am, practically. And I knew that we were heading towards litigation. Emails of the order of "don't you know I'm a lawyer" blah, blah, you know "don't you know who I am". [127]

Stuart Skeoch

1. The Second Defendant gave evidence that on 28 March 2017, she emailed Mr Stuart Skeoch of Expression Constructions Pty Ltd who she considered to be a good builder and whom she trusted. [128] The Second Defendant conceded that on instructing Mr Skeoch she had provided to him the quote from Prime Restorations and Ms Tralau. [129] The Second Defendant conceded that she had informed Mr Skeoch that she was likely to use Prime Restorations as she had a quote for virtually the same work for significantly less costs. [130] She stated that she was anxious at that point to find out the cause of the mould and it was for that reason that Mr Skeoch was engaged. Mr Skeoch provided a report on 30 March 2017 stating: Firstly, my opinion from my visit without influence from other inspections • Yes a higher level of moisture was present in the Walk in Robe and Bedroom • There was a strange centralised gathering of water within the centre of the Walk in Robe (attached photo 1), this also lined up with the dampness on the underside of the flooring (attached photo 2) • I did access the sub floor in these locations, in my opinion the moisture levels were not severe however apparent that a better system of ventilation is required. This would not necessarily mean a mechanical system, additional vents installed to the perimeter of the house would also assist greatly. In addition someone spending time cleaning out the existing vents would be a given. (attached photo 3) • I was told there was no bathrooms in the vicinity so I was not able to inspect the likelihood of these being an issue. • Regarding the dining room, I am not disagreeing that there is a combination of moisture entry and rising damp in this location and I do agree that remedial works would need to take place. However I would also be removing the overgrown vegetation and cleaning out the external drains (attached photos 4 & 5) as a first response. The report prepared by Mould Rescue is very thorough and also intense, although you have a duty of care I would be sharing this with the tenant. (but in your hands) The process and pricing they have given you is significant. I would avoid there proposal. Primes evaluation and pricing is considerably cheaper, although clearly not the same scope [131]
2. The Second Defendant was cross-examined in relation to Mr Skeoch's report maintaining that there was no rising damp. [132]
3. The Second Defendant nevertheless described acting on the advice of Mr Skeoch four months later when the Plaintiff and his family moved out. [133] The Second Defendant was questioned as to what that advice was and the transcript records: Q. Do you recall what his advice to you was? A. Sorry? Q. Do you recall what his--? A. Yeah, he said there was no rising damp and it was a horrible experience that morning for me anyway. I can tell you why. Q. I am asking you about what Stewart Skeoch advised you. A. That - I don't exactly remember but there was - and not just him - but no one definitively identified rising damp under the house in which we had lived for thirty something years and had tenants. This was a, a very new situation with moisture penetration. Q. I have asked you what advice did Stewart Skeoch give you. A. But there was no rising damp. Q. Go to page 466 of the bundle please. A. Okay, let's have a look. "Dear Ilana" -yes - "a high level of moisture was present." Q. This was the email that Stewart Skeoch sent to you in response on 30 March 2017. A. Right. He is saying he would avoid their - excuse his spelling - their proposal. Q. What he said to you was that he accessed the subfloor and "it was apparent" - he said - "that a better system of ventilation is required." Do you see that in the third dot point? A. Mm-hmm. Q. He also told you that additional vents installed to the perimeter of the house would greatly assist. Do you see that? A. Yeah. Q. Do you accept that advice from him? A. Yes, but later on we found out the water was coming from above not below, when we were able to totally inspect the premises. It was - the water was not coming from below. Q. And he said next, "That it would be necessary" - I'm summarising here - "to clean out the existing vents." Do you remember reading that advice from him? A. I just did now. I don't remember but I have just read it now. Q. Do you see in the fifth dot point he says, "Regarding the dining room, I'm not disagreeing that there is a combination of moisture entry and rising." Is it the case that the word "damp" also appeared in this email but it has been cut out of the email? A. Possibly, I don't know. It's not there is it. Q. The word "rising" is there, isn't it? A. Well, the word "rising" not ended, yeah. Q. I suggest to you that he was telling you that there was a combination of moisture entry and rising damp in the location of the dining room. Do you accept that? A. I can only say that we had lived there - we had owned the house for forty something years and we had not had a rising damp problem. [134]

Tall Ideas Pty Ltd

1. On 24 April 2017, Tall Ideas Pty Ltd provided a report to the Plaintiff in respect of the subject premises. After making observations the Tall Ideas report stated: The house was originally built in 1930, with multiple additions to the base structure. In general the house is poorly designed with no consideration to site drainage and flashing. We believe the main source of the high moisture content in the house is from the stormwater runoff. Stormwater runoff would enter the subfloor zone through the Northern elevation behind the dining room wall due to the poor drainage, and along the Western elevation due the permeable side path and slope toward the house. There is also the risk that the swimming pool shell or plumping is leaking and contributing the problem. Once the water is in the subfloor zone area, there is now way for it to leave as there is no natural or mechanical sub floor ventilation. The lowest part of the house is where excessive moisture content would occur. The lowest area of the house are the front 2 rooms. Since there is no visible signs of a damp proof course or ventilation we would expect that the front two rooms would develop mould and mould spores growth, to extreme levels. In addition to the above, there are also additional elements that need to be addressed: • Roof flashing • Cracked roof tiles • Rotten window sills and flashing • Displaced gutters • Displaced downpipes • Perimeter stormwater collection points All the defects we have identified above are the direct result of incorrect construction, poor maintenance or building failure and all could of have been rectified at any time. The property has numerous inherent building defects and none of these defects have been caused by the occupation of the house. [140]
2. The First Defendant gave evidence that when he received Tall Ideas report he was furious with the Plaintiff as he and his wife had repeatedly asked if there was anything wrong and the report demonstrated problems which should have been referred to them at the earliest opportunity. He acknowledged that he had inspected the property previously in September 2016. In cross-examination, he stated that he was suggesting that the problems that emerged in the Tall Ideas report emerged between September 2016 and April 2017 because Sydney at that time had rained almost every day, there was warm weather and water penetrated the house. [141] He acknowledged that it was his responsibility to carry out inspections of the property to ensure that it was in a proper state of repairs. [142]

NCAT Proceedings, Tenancy Termination, Property Renovation and Sale

1. On 13 April 2017, the Plaintiff lodged an application to NCAT for orders including compensation to his personal property ($15,000), an abatement or reduction of rent and for repairs. [145]
2. On 3 May 2017, the Defendants wrote to the Plaintiffs response to a letter sent by his solicitors accepting that the property was "wholly or partly uninhabitable" and enclosing a notice to terminate the tenancy. [146] A covering letter stated "we accept that the property is presently uninhabitable in whole or part otherwise than as a result of a breach of the RTA". [147]
3. On 18 May 2017, the Defendants lodged a claim in NCAT for compensation as follows: 1. A claim for $2,200 in respect of damage to the skylight and break of surrounding tiles said to have been occasioned when the Plaintiff sought to repair a leak in the skylight; 2. A claim for $14,860 in respect of a failure by the Plaintiff to keep the premises reasonably clean arising from the leakage of water through defective windows and from an upstairs bathroom, broken roof tiles and blockage of drains from leaves and debris; 3. A claim for rental arrears amounting to $21,030; 4. An order for the Plaintiff to remove the mould damage; 5. An order that termination notices issued on 6 April 2017 and 17 May 2017 were valid; a termination order and order for possession of the land and an order for an occupation fee. [148]
4. By consent on 7 July 2017 both NCAT proceedings were transferred to this Court by an Order made pursuant to clause 8 schedule 4 of the Civil and Administrative Tribunal Act 2013 (NSW). [149]
5. The Plaintiff gave evidence to the effect that he engaged five real estate agents "to find alternative accommodation seeking four bedroom house in the Eastern Suburbs to suit the children's schooling and friendships. We viewed several properties and settled on a house in Bondi Beach. We moved in or about July/August 2017." [150]
6. After the Plaintiff's family vacated the property, the First Defendant conceded that remediation work was carried out at a cost of more than $300,000 before the property came to be sold in April 2018. [151]
7. On 14 July 2017, the Defendants stated that they applied to New South Wales Fair Trading for payment of the rental bond of $9,900 which the Second Defendant acknowledged as having been paid to them. [152] In fact the bond amount was accepted by the Plaintiff as $9,600. [153] On 21 July 2017, the tenancy was terminated by agreement by the parties. [154]

Ray Fakhoury

1. On behalf of the Plaintiff on 27 June 2017, a site visit of the property was carried out by Mr Ray Fakhoury from DW Knox & Partners instructions from DJP Management Pty Ltd. [165] The report that followed was dated 20 October 2017. It indicated that the purpose of the visit was to inspect the condition of the house and to ascertain the likely cause of the alleged mould growth and prepare a litigation-compliant report with an expert opinion addressing matters raised by the landlords in their application made to NCAT dated 18 May 2017. Mr Fakhoury, a civil engineer indicated that he had worked for more than 30 years in the profession. His report stated that he was experienced in the assessment and restoration of private residences and designs stormwater on-site detention systems for Councils and greater Sydney.
2. Mr Fakoury described the property containing an original house constructed in 1930 with additions completed in about 1989 comprising extensions to the northern and western sides which incorporated a raft concrete slab being 110mm thick.
3. Mr Fakhoury made the following observations: Eastern building elevation 1. There were a small number of subfloor ventilation vents and that the vents appeared to be partially blocked by render. [166] 2. A strong musty smell typical of extensive subfloor dampness the occurrence of which was the result of water ingress in the underfloor area combined with inadequate subfloor ventilation. Western building elevation 1. There were only a small number of subfloor ventilation vents and that the vents appeared to be partially blocked by render: 2. The windows on the western wall at level 1 were affected extensively by rot. He described the level of rot observed as extensive and resulted in significant timber section loss. Based on observation and experience he stated that the majority of the observed rot would have been present when the tenant moved into the premises Northern building elevation 1. Mr Fakhoury observed that during his inspection of the northern perimeter wall the internal areas were "consistent with high moisture levels within the ground slab and walls." 2. He further noted that the parquetry flooring had cupped and detached from the concrete slab in places and he also observed bubbling and detachment of the paint and internal render typically. He noted that the cupping occurs when there is a higher moisture concentration at the underside of the floor boards then the top. He stated that this condition leads to curvatures in the floor boards as the underside of the floorboards expand relative to the top of the boards which are drier due to air. The occurrence of rising damp was seen as associated with an inadequate damp proof course (DPC) in the northern perimeter wall or the result of water coming into contact with the masonry above the DPC (assuming that a DPC had been provided) which is in turn associated with the rising damp observed in that area. [167] 3. Mr Fakhoury stated that the drain was not fit for purpose, and that the drainage detail along the outside of the northern perimeter wall was a poor design as it did not provide a "fail safe" mechanism to divert water in the event that the drain was "overloaded" with surface water runoff. [168] This led directly the rising of damp and mould related issues internally (including the detachment of the parquetry flooring) around this area. Ground Floor/southern Building Elevation 1. The high levels of mould growth in the ground floor area were ascribed as "predominantly due to the inadequate subfloor ventilation". [169] He stated: "Based on our observations made at the external wall elevations typically (and noting that there is minimal subfloor ventilation along the southern elevation of the house as the subfloor is largely concealed) we are of the view that the subfloor ventilation is inadequate and that cross floor ventilation is not sufficient enough to prevent mould growth." [170] Skylight 1. Mr Fakhoury further noted that the ceiling in the family room was affected by mould growth in the ceiling area around the skylight that would have been part of the extension completed in 1989. [171]

Did the Defendants comply with s 52 of the 2010 Act at the commencement of the tenancy?

The Issue

1. Section 52(1) of the 2010 Act provides as follows: A landlord must provide the residential premises in a reasonable state of cleanliness and fit for habitation by the tenant.
2. Section 52 of the 2010 Act was amended with retrospective effect in 2018 by the Residential Tenancies Amendment (Review) Act 2018 (NSW). [174] Relevantly, section 52 additionally provides: (1A) Without limiting the circumstances in which residential premises are not fit for habitation, residential premises are not fit for habitation unless the residential premises - (a) are structurally sound, and (b) have adequate natural light or artificial lighting in each room of the premises other than a room that is intended to be used only for the purposes of storage or a garage, and (c) have adequate ventilation, and (d) are supplied with electricity or gas and have an adequate number of electricity outlet sockets or gas outlet sockets for the supply of lighting and heating to, and use of appliances in, the premises, and (e) have adequate plumbing and drainage, and (f) are connected to a water supply service or infrastructure that supplies water (including, but not limited to, a water bore or water tank) that is able to supply to the premises hot and cold water for drinking and ablution and cleaning activities, and (g) contain bathroom facilities, including toilet and washing facilities, that allow privacy for the user. (1B) For the purposes of subsection (1A)(a), residential premises are structurally sound only if the floors, ceilings, walls, supporting structures (including foundations), doors, windows, roof, stairs, balconies, balustrades and railings - (a) are in a reasonable state of repair, and (b) with respect to the floors, ceilings, walls and supporting structures - are not subject to significant dampness, and (c) with respect to the roof, ceilings and windows - do not allow water penetration into the premises, and (d) are not liable to collapse because they are rotted or otherwise defective.
3. Section 52(4) of the 2010 Act provides that the section is a term of every residential tenancy agreement. Clause 18.1 of the residential tenancy agreement in any event provided that the landlord agrees to make sure that the residential premises are reasonably clean and fit to live in. [175]
4. The question of the Defendants' compliance with section 52 was raised in the Statement of Claim at [7] and [13] and identified in the Plaintiff's Schedule of Issues at [3]. In short, the Plaintiff's claim was that a breach of section 52 amounted to a breach of the terms each tenancy agreement. The Schedule of Issues identified it as being at the commencement of the tenancy. [176]

Plaintiff's Submissions

1. The Plaintiff relied on the test endorsed in Gray v Queensland Housing Commission. [177] In that case, Chesterman J adopted the test in Summers v Salford Corporation [178] stating at [11]: The test approved by the House of Lords may be paraphrased: if the state of repair of a house 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.
2. The Plaintiff also relied on the decision of Millsteed J in Hampel v South Australian Housing Trust [179] where his Honour stated at [63]: Conclusion ….. 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.
3. Applying the tests stated in Gray and Hampel, the Plaintiff argued that the evidence would satisfy the Court that the property was in a state of repair such that, from the outset, injury was to be expected, or would naturally occur, from the ordinary use of the premises, such that the dwelling could not be regarded as fit for human habitation. The Plaintiff relied on the features identified by Mr Fakhoury and the opinions expressed by Mr Skeoch, the representatives from Zenith, and the engineer from Tall Ideas. The Plaintiff submitted: Here, the fact of the presence in the property of serious defects in the form of inadequate subfloor ventilation, drainage that was not fit for purpose, an inadequate damp proof course, the defective skylight connection and rotted windows - individually, and combined - rendered the property unfit for habitation, and in a state of repair that was not reasonable, at (and from) the commencement of the plaintiff's tenancies under the agreements entered in 2013 and 2015, and on each renewal of those agreements. The habitability of the premises sets a minimum level of disrepair below which a landlord is in breach of section 63 of the Act from the commencement of the tenancy. [180]
4. The Plaintiff noted that the Defendants did not produce any expert evidence in response to the Plaintiff's expert and after the Plaintiff vacated in July 2017, the Defendants undertook major building works by the extension renovations and repairs.

Defendant's Submissions

1. The Defendants accepted the obligation in section 52 of the 2010 Act arose at the commencement of each tenancy agreement. However, they argued that the Plaintiff resided at the premises without any substantial complaint until about March 2017 and whilst he remained on the premises thereafter he gave no actual evidence before the Court of any steps he took to actually move. [183] This it was said was the reason that it was stated in Bannister v Cheung [184] that the test of whether residential premises are fit for habitation is a difficult one to establish and should not lightly be found. [185] Furthermore, the Defendant submitted that there was no evidence let alone expert evidence capable of establishing that the property was unfit for human habitation from the inception of the tenancy.

Consideration

1. As the Plaintiff's loss is said to have arisen from March 2017 the question of breach of s52 of the 2010 Act falls to be considered at the point of the last tenancy agreement. Whether that was at 3 July 2015 when the lease was entered into or August 2016 when it was extended matters little.
2. Zenith identified the sources of dampness that led to the mould as the inadequate subfloor ventilation and the inadequate exhaust system in the en-suite. The Zenith quotation of 9 March 2017 indicated the need for mechanical ventilation in the main bedroom and robe area. It also recommended the installation of a damp proof course into the lowest mortar course to the floor of the wall in the dining room area. Mr Skeoch was specifically engaged by the Second Defendant to examine the cause of the mould. Mr Skeoch also noted that a better system of ventilation of the subfloor was required in the walk in robe and bedroom areas. He however recommended additional vents and cleaning of existing vents as opposed to mechanical ventilation. With respect to the dining room area he accepted that remedial works were necessary to address rising damp although suggested removing the overgrown vegetation and cleaning out the external drains as a first response. The Tall Ideas report identified the main source of the high moisture content in the house to be from the stormwater runoff which would enter the subfloor zone through the Northern elevation behind the dining room wall due to the poor drainage, and along the Western elevation due the permeable side path and slope toward the house. Once the water is in the subfloor zone area, the report stated that it would descend to the lowest part of the house where the front 2 rooms were and since there were no visible signs of a damp proof course or ventilation it would be expected that they would develop mould and mould spore growth to extreme levels. The report also identified that additional elements that needed to be addressed were the roof flashing, cracked roof tiles, rotten window sills and flashing, displaced gutters and downpipes and repairs to perimeter collection points.
3. Mr Fakhoury's report similarly identified inadequate subfloor ventilation and drainage, an inadequate damp proof course, the defective skylight connection and rotted windows all of which contributed to mould and preceded the Plaintiff's occupancy.

Did the Defendants comply with section 63 of the 2010 Act?

The Issue

1. The Plaintiff also asserted that the Defendants failed to comply with section 63 of the 2010 Act.
2. Section 63 provides: (1) A landlord must provide and 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. (2) A 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 occupation of the residential premises. (3) A 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. (4) This section is a term of every residential tenancy agreement.
3. Clause 18.3 of the residential tenancy agreement provided a similar obligation to section 63(1) of the 2010 Act. [196]
4. The Plaintiff's pleaded case is as earlier referred to at [126]-[127] and as expressed at [13] of the Statement of Claim, the Plaintiff's case is that of failure to maintain the property in a reasonable state of repair.

Plaintiff's submissions

1. The Plaintiff submitted that the habitability of the premises sets a minimum level of disrepair below which a landlord is in breach of section 63 of the 2010 Act from the commencement of the tenancy. The Plaintiff argued that no later than 2012 and probably earlier the Defendants were on notice that the property suffered from water penetration and mould proliferation and they took no action. [197] Notice was said to have arisen from the following: 1. From 1990 when the First Defendant wrote to Woollahra Council and certainly by no later than 2012 when the tenancy of Mr and Ms Graham was terminated when Ms Graham complained of removing 20 litres of water every two days from the main bedroom and which is something that she showed to First Defendant. 2. When the Defendants were informed of the mould growth on the Plaintiff's leather jackets in mid-2015 and from their inspections of the property it was submitted that they were aware of mould on the leather jackets at about the time of the parties' entry into the 2015 tenancy agreement. 3. From the fact that the Defendants were self-managers of the property and as such were regular visitors and had carried out inspections as a condition of the lease as recently as September 2016. 4. Between early March 2017 and late July 2017, the Defendants obtained various reports from mould professionals, builders and an engineer, all of which confirmed the existence of dampness and the dangerous levels of mould at the property, and that the primary cause was the structural defects in the property in the form of inadequate sub-floor ventilation. Despite obtaining advice the cause of the mould that had not been addressed by the time the Plaintiff vacated in July 2017.
2. Even if the Court were to find that the Defendants did not have actual notice of the water penetration, the Plaintiff contended that it would be satisfied that they had constructive notice of the defects, which is sufficient for the purposes of the section 63 of the 2010 Act. Reference was made in this respect to the decision of Doyle J in Varricchio v Wentzel. [198]

Defendant's Submissions

1. The Defendants submitted that they did not have either actual or constructive knowledge.
2. With respect to the letter to Woollahra Council dated 6 April 1990, the Defendants argued that the language used in that letter was indicative of a person who had problems drawn to his attention and the means for its solution. Reference was made to the First Defendant's letter of 6 April 1990 stating that they were intending to repaint the house and a decision was made to use a membrane style material called Emer-Clad which was described as outstanding which was reused 20 years later. [199] Evidence to a similar effect was given by the Second Defendant. [200]
3. The Defendants' contention was that rather than evidencing knowledge this was evidence of "a problem drawn to [the First Defendant's] attention, and the means for its solution." [201]
4. Secondly, in relation to the evidence of Ms Graham, the Defendants drew attention to the fact that Mr Graham did not give evidence in the proceedings despite evidence on the part of Mrs Graham as to his involvement in assisting her in drafting emails to the NCAT. [202] It was submitted that this leads to an inference that Mr Graham's evidence would not have assisted the Plaintiff. [203] Furthermore, attention was drawn Mrs Graham agreeing in cross examination that in her email correspondence with the Defendants there is no reference to the word "mould". [204] It was submitted that the Court was left with the impression that Mrs Graham made a complaint about damp but no contemporaneous written complaint about the mould. The Defendants drew attention to the Second Defendant's evidence where she denied that a complaint of mould figured in Ms Graham's complaints. [205] Further, the Second Defendant with respect to her correspondence to Mrs Graham denied any complaint of mould. [206]
5. Thirdly, the Defendants contended that the Plaintiff "informed the Defendants of the existence of mould on his leather jacket at about the time of entry into the 2015 tenancy agreement" which should not result in knowledge being imputed to the Defendants. The Defendants argued that this fact alone cannot constitute evidence of knowledge of a defect. It was contended that the Plaintiff's own submissions appear to accept (at [103]) that mould was a symptom not a cause. [207] In any event, the Plaintiff's pleaded case is that he first became aware of the presence of mould in early 2017. This was said to be confirmed in the Plaintiff's first affidavit at [18] where he stated that there had never been any complaint to the owner in relation to the state of the property until March 2017 and further paragraphs [19]-[24] of the Plaintiff's first affidavit did not disclose any basis for thinking that the mould was a cause for problem or concern between 2015 and early 2017.

Consideration

1. Varricchio v Wentzel was based on section 68 of the Residential Tenancy Act 1995 (SA) which was differently worded. Nevertheless similarly to that section, section 63 of the 2010 Act does place a positive obligation on the landlord to satisfy himself as to the state of the premises.
2. In Northern Sandblasting Pty Ltd v Harris, Gummow J held:- In general, there is no breach on an express covenant by a landlord to keep the demised premises in repair unless two criteria have been met. First, the landlord must have information as to the existence of the defect such as would put a reasonable landlord on inquiry as to whether works of repair are needed and, secondly, thereafter the landlord must have failed to carry out the necessary works with reasonable expedition. But, as Cussen J pointed out, this is a rule of construction to be considered with the text of the particular lease, not a rule of law. [214]
3. Accordingly, the fact that the requirement is section 65(3) of the 2010 Act is specified as applying only to the Tribunal does not appear to be of any significance.
4. I do not accept the Second Defendant's account that in owning the house for forty years they had not had a rising damp problem. The First Defendant's evidence was that in the 34 years' experience of living in the house; some manifestation of mould was an occasional issue during the high humidity in the summer.
5. Whilst it may be accepted that the membrane described as Emer-Clad was used as described in the evidence of the Defendants, that evidence falls short of addressing the structural defects identified in the expert evidence relied upon by the Plaintiff. Moreover, it does not detract from the Plaintiff's claim that the Defendants were aware of the property being susceptible to water penetration in the form of rising damp and consequent mould proliferation from at least 2012 when the matter was raised by Ms Graham.
6. The First Defendant ultimately came to accept that the problem was complex and required major building works.
7. Mrs Graham's email dated 7 November 2012 brought to the First Defendant's attention that a dehumidifier had been purchased which was extracting 20 litres of water every two days. The Second Defendant expressed a view that the reference to 20 litres was a "typo" and if that were to be correct - "that's a major flood." She indicated that if it is not "a typo" she would have thought it was an exaggeration. [215] The First Defendant after attempting to explain his surprise indicated that he was not concerned about it being out of the ordinary. He stated that after reading reviews of such machines he viewed it as a normal performance characteristic as opposed to abnormal in the instance of excessive moisture. [216]

Did the Defendants contravene section 26 of the 2010 Act?

The Issue

1. The Plaintiff argued that the Defendants were in breach of section 26 of the 2010 Act in that they concealed a material fact prescribed by clause 7 of the Residential Tenancies Regulation 2019 (NSW) (2019 Regulation). Section 26(1) of the 2010 Act reads: False representations A landlord or landlord's agent must not induce a tenant to enter into a residential tenancy agreement by any statement, representation or promise that the landlord or agent knows to be false, misleading or deceptive or by knowingly concealing a material fact of a kind prescribed by the regulations.
2. It appears that the reference to clause 7 of the 2019 Regulation was intended to be a reference to clause 8 which provides: For the purposes of section 26(1) of the Act, the following material facts are prescribed - (a) … (b) the residential premises are subject to significant health or safety risks that are not apparent to a reasonable person on inspection of the premises, Note - Disclosure under this provision does not affect the legal obligations of the landlord with respect to the residential premises.
3. The Plaintiff particularised the material fact for the purposes of section 26(1) of the 2010 Act as knowledge as at August 2013 that the property was affected by water penetration and dampness and/or that mould was present at the Property. [227]

Plaintiff's Submissions

1. The Plaintiff contended that the Defendants were well aware of the damp and mould problems of the property before the Plaintiff entered into his tenancy agreements, and at the time of the commencement of his tenancy, yet they did not address the problem, and did not warn the Plaintiff of the damp problem and the risk of mould proliferation associated with it.
2. On each of the occasions, it was submitted that the Defendants as landlords were well aware of the fact of the damp problem at the property, and of the associated risk of mould proliferation; and that the Plaintiff had not been made aware of those significant health or safety risks. Attention was drawn to the Second Defendant conceding that neither she nor leasing agents (Farquharsons Executive Rentals) had informed the Plaintiff that there had been previous complaints by the former tenants about the damp and mould of the property. [228]

Defendant's Submissions

1. The Defendants for their part submitted that there was no breach of clause 7 of the 2019 Regulation and relied on O'Brien v Roberts [229] where it was held that "even if there was a failure to advise the tenants of mould issues, that is not a material matter, as defined under the Act and Regulations (refer s 26(1) and Regulation 7)." Reference was also made to Anforth, Christensen and Adkins, Residential Tenancies Law and Practice in New South Wales (7th ed) at [3.7.1], where O'Brien v Roberts was cited as authority for the point that mould is not a material matter.
2. The Defendants contended that there is no substantial evidence before the Court that the property was affected by a mould problem before the inception of the Plaintiff's tenancy.
3. Even if the Defendants were aware of a mould problem (which is denied) it was said that it did not equate with the property being subject to a significant health or safety risks. Reference in this regard was made to the answers by the First Defendant relevant to the testing results where he stated: Q. And did you pay attention to the results that were depicted in this - the results of the testing that were shown in this document? A. I did. Q. And you - did you pay attention to the fact that very high levels of mould had been detected in the downstairs area of the property? A. Yes, there - there were two mould groups, Cladosporium and Aspergillus/ Penicillium. Neither of those are - sorry, I'll rephrase that. These are rarely the consequence of human health problems [230]

Consideration

1. The Plaintiff did not particularise in what way it was asserting a breach of section 26(1) of the 2010 Act if established entitled him to relief. The section constitutes a criminal offence not a contractual obligation.
2. If the Plaintiff's claim is based on a breach of statutory duty [231] it did not explain how a breach of section 26 would give rise to such a claim as a matter of statutory interpretation bearing the presumption flowing from the existence of a penalty [232] and the alternate remedies potentially available. [233]
3. Leaving that matter aside, the testing results commented on by the Second Defendant in his evidence related to mould sampled in 2017. Whatever the properties were on that occasion the question of disclosure from 2013 rests on the existence of a significant health or safety risk which the Defendants were aware preceding the Plaintiff's tenancies.
4. Even accepting that there was mould arising from the rising damp affecting the main bedroom and walk in bedroom as referred to by Ms Graham the Plaintiff did not explain how this would be characterised as a "significant health or safety risk" in terms of clause 8 assuming that this is a concept predicated on the character of the risk and the likelihood of its occurrence.
5. Moreover, the Plaintiff did not plead, put to the Defendants, or respond to the submission that it had not asserted or established that relevant information was knowingly concealed to induce the Plaintiff to enter each of the tenancy agreements.
6. In the circumstances, it is unnecessary to consider this issue further.

Duty of Care

1. The Plaintiff's claim particularised the duty it asserted was owned to him in [9]-[10] of the Statement of Claim as follows: 9 At all material times the First and Second Defendants knew, or ought to have known, that the Plaintiff: a) relied on the First and Second Defendant to ensure that the property was fit for use as a dwelling: b) would likely suffer loss and damage of the kind and magnitude that the Plaintiff has suffered if the First and Second Defendants did not take reasonable steps to keep the property in a good state of repair, including by the rectification of defects and proper maintenance of the building; and c) accordingly, was vulnerable to the risk of suffering loss and damage of the kind and magnitude that he has in fact suffered. 10 By virtue of the matters pleaded in paragraph 9, the First and Second Defendants owed the Plaintiff a duty of care to avoid the risk of: a) economic loss; and /or b) loss and damage to the Plaintiff' property.
2. Breach was particularised in [15] of the Statement of Claim as follows: In breach of the duty of care referred to in paragraph 10 above, the First and Second Defendants failed to take reasonable steps to avoid a foreseeable risk of harm to the Plaintiff arising from the presence of the mould and dampness at the Property.
3. In Jones v Bartlett the High Court held that the landlord of residential premises owes a duty of care to his tenants and by application visitors. Each of the Justices however differed in their approach.
4. In Sakoua & Anor v Williams, [234] Mason P with whom Brownie AJA agreed stated as follows: 4 The Court discussed the content of the duty, with respect to the condition of the premises at the inception of the letting. Three justices in the majority favoured a duty expressed in terms of one to take reasonable care to avoid foreseeable risk of injury, leaving the practical content of the duty to be governed by the circumstances of the case (per Gleeson CJ at 184[56]-[58], per Gummow and Hayne JJ at 213[168]-[169]). 5 Two justices in the majority favoured slightly narrower formulations of the duty, referring to a duty to put and keep the premises in a state of safe repair (per Gaudron J at 192[88]-[93]), or to take reasonable care to avoid foreseeable risk of injury from defects of which the landlord was on notice or of which (by appropriate inspection) the landlord would reasonably become aware (per Kirby J at 240[252]). Callinan J expressed no opinion beyond the tentative statement that if any duty were owed, a matter of which he was far from convinced, he would define it as no more than a duty to provide, at the inception of the tenancy, habitable premises (at 252[289]). 6 McHugh J dissented, for reasons to which I refer below. 7 It can therefore be seen that, for Kirby and Gaudron JJ, the concept of a dangerous defect was central to the narrower duty of care that they favoured. For Gleeson CJ, Gummow and Hayne JJ the presence of such a defect at the inception of a tenancy was seen as highly relevant to a finding of breach of the more generally expressed duty of care that they favoured. 8 On my reading, none of the justices in the majority went so far as to take any duty to repair beyond requiring the lessor to address defects of which he or she was aware, or ought to be aware. And each of their Honours defined "defect" in this context to mean something more than a condition capable of causing injury (see Tina Cockburn, "Duty of Care of Landlords of Residential Premises" (2001) 20 U Tas LR 205 esp at 223-6; Sharon Erbacher, "Unsafe leased residential premises: A landlord's liability in negligence to injured occupants" (2002) 13 ILJ 134). [235]

Breach of Duty

1. Accepting that the duty of care is as stated above, section 5B of the Civil Liability Act 2002 (NSW) (the 2002 Act) deal with breach and provides: (1) A person is not negligent in failing to take precautions against a risk of harm unless-- (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things)-- (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm
2. Section 5C further provides: In proceedings relating to liability for negligence-- (a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and (b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and (c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk.
3. The Plaintiff submitted that the Defendants breached the duty of care by reason of the following: 1. The existence of dangerous and patent defects. [239] 2. The fact that the Defendants knew, or should have known, about the defects. [240] 3. The failure of the Defendants to take reasonable steps to repair the defects or otherwise to prevent the harm from occurring. [241] These matters are considered below.

The existence of dangerous and patent defects

1. The Plaintiff argued that the existence of dangerous and patent defects were related to defects in the property which created a risk of harm in the ordinary use of the premises as a dwelling. It relied on Mr Fakhoury's opinion that the water ingress and mould were caused by "inherent building defects … as a result of original design and construction issues." Reliance was also placed upon the Tall Ideas report which in its concluding paragraph stated: "All of the defects that we have identified above as a direct result of incorrect construction, poor maintenance or building folder and all could've been rectified at any time."
2. The Defendants contended that none of the expert reports adduced on the Plaintiff's part have conclusively opined that the cause of the mould problem that manifested itself on the Plaintiff's case in "early 2017" as stated in [12] of the Statement of Claim.
3. In this respect, the Defendant drew attention to a tweet issued by the Plaintiff on 2 April 2017. [242] Some emphasis was placed on that tweet and the accompanying article despite what it asserted was the Plaintiff's attempts to brush away its significance. The Defendant inferred that this gave another explanation for the mould that developed.
4. Firstly, the Defendants contended that Mr Fakhoury's report in particular his conclusions required comment. The Defendants drew attention to conclusions (i) and (vi) referred to at [122]. The Defendants argued that Mr Fakhoury did not elaborate, in accordance with accepted principles in Makita v Sprowles [243] and Dasreef Pty Ltd v Hawchar [244] how the subfloor timber ventilation system was in fact the cause of the mould growth.
5. Secondly, to the extent the alleged defects identified by Mr Fakhoury were attributable either to a non-compliance "with the BCA or accepted building practices" or "as a result of original design and construction issues and not due to the tenants occupancy." Mason P in Sakoua v Williams observed at [32] that "building standards since the premises were built did not in itself impose a duty to upgrade the premises before effecting the letting." Nor did such changes in standards establish in themselves that the steps were defective in the sense of putting the lessor in breach of the duty of care with the scope recognised in Jones [v Bartlett]."

Consideration

1. I do not accept the Defendants' criticism of Mr Fakhoury's report. In my view, the report properly explained how the combination of defects described enabled a collection of water that could not be discharged and with inadequate subfloor ventilation led to rising damp and mould. For reasons earlier stated, I find Mr Fakhoury's evidence supported by other reports referred to. The Defendant's did not elaborate on their submission suggesting the contrary. The Defendants sought to deflect the responsibility relying on statements of Mason P in Sakoua v Williams at [32]. Whilst those statements are noted there is nothing to indicate the standards to which the house was built and whether they were relevantly different to those to which Mr Fakhoury referred. Beyond that, Mr Fakhoury referred not only of BCA requirements but also accepted building practices. In this respect, his conclusions are logical and straightforward. Moreover, at least part of the criticism of the condition of the dwelling relates to the effects of the 1989 construction of the rear concrete slab to the home. Mr Fakhoury's ultimate finding was that these factors overall made the dwelling uninhabitable.
2. Section 5(1) of the 2002 Act requires identification of the risk of harm. As best as I can determine based on the Plaintiff's particularisation, the risk of harm relied on was the risk of sustaining loss by water damage and mould due to structural defects in the dwelling.

The Defendants knew, or should have known, about the defects [250]

1. The Plaintiff contended that the existence of dangerous and patent defects in the sense discussed in Jones v Bartlett was evident from Mr Fakhoury's unchallenged opinion that the water ingress and mould were caused by "inherent building defects… as a result of the original design and construction issues." This was said to be also supported by the Tall Ideas report.
2. The Plaintiff referred again to the First Defendant's correspondence to Council in 1990 stating that the property suffered from damp and water penetration as well as Ms Graham's complaint in 2012 about damp and mould at the property as well as the Plaintiff informing the Defendants about the existence of mould on his leather jackets about the time of entry into the 2015 tenancy agreement.
3. The Defendants submitted that the Plaintiff could not make out his contentions for the same reasons referred to at [160]-[168] herein.
4. It follows from my findings earlier expressed that the Defendants knew or ought to have known about the defects relating to those matters. The Defendants did not contend that in such circumstances the risk of harm was not foreseeable or the risk was insignificant. Indeed, Ms Graham had given evidence of the First Defendant coming over to the house several times and showed him her bags that she had to throw out that had mould growth on them and her clothes that she had to take to the drycleaner because they had leather jackets that were full of mould.

Failure of the Defendants to take reasonable steps to repair the defects or otherwise to prevent the harm from occurring

1. The Plaintiff contended that the Defendants breached their duty of care by failing to take reasonable steps to avoid a foreseeable risk of harm. [251] This was subsequently particularised as requiring the Defendants to rectify known defects, maintain the property in a reasonable state of repairs and warn of the presence of water penetration and mould. [252]
2. The Plaintiff's written submissions elaborated: 1. That the Defendants were aware from no later than late 2012, that the property was susceptible to water penetration and mould proliferation, yet they did not take any steps to address the problem, and they did not warn the Plaintiff of the presence of water penetration and mould when Zenith, Mr Skeoch, the engineer from Tall Ideas and Mr Fakhoury attended the property and each immediately identified inadequate subfloor ventilation as a defect that required rectification. 2. The steps that the Defendants ought to have taken (but did not) included warning the Plaintiff of the presence of the dampness and mould at the property and ensuring that the source of the water ingress was identified and remedied. [253] The Plaintiff contended that evidence demonstrated that the Defendants did not issue any warning to the Plaintiff, and it was only some months after the Plaintiff and his family moved out that the Defendants undertook the remedial work that was recommended by Mr Skeoch in his email of 30 March 2017. [254] 3. The Defendants failed to disclose to the Plaintiff the existence of water penetration, the damp environment and mould, or the risk of the existence of mould, at the property at the time the Plaintiff agreed to lease the Property. [255] 4. The Defendants failed to take any proper or adequate steps to repair and/or remediate the Property to ensure it was in a habitable condition. In this respect the Plaintiff referred to its earlier submissions. 5. The Defendants failed to take proper or adequate steps to repair and/or remediate the Property to remove the existence of water penetration, the damp environment and mould, or the risk of mould, at the Property prior to the Plaintiff occupying the Property or during the period of the Plaintiff's occupation. 6. The Defendants failed to take proper or adequate steps to repair and/or remediate the Property during the period of occupation by the Plaintiff after receiving complaints by the Plaintiff of the existence of water penetration, the damp environment and mould at the Property.

The Issue

1. Section 30(1)(b) of the ACL provides: 30 False or misleading representations about sale etc. of land (1) A person must not, in trade or commerce, in connection with the sale or grant, or the possible sale or grant, of an interest in land or in connection with the promotion by any means of the sale or grant of an interest in land: (a) ………; or (b) make a false or misleading representation concerning the nature of the interest in the land; or
2. Since a lease constitutes an interest in land, the grant of a lease will clearly be within the clause. Whilst the making of an agreement of the lease does not constitute a grant it is "connected with" the grant and creates an equitable interest in the land.
3. Section 236(1) of the ACL provides: If a person suffers loss or damage because of the conduct of another person and the conduct contravened a provision…the claimant may recover the amount of the loss or damage by action against that other person or against any person involved in the contravention.

Plaintiff's Submissions

1. The Plaintiff contended that the Defendants were engaged in trade and commerce when they personally managed the leased property and when they dealt with the Plaintiff in respect of each renewal of the lease in circumstances where: 1. the Defendants had historically engaged in leasing activity; 2. the tenancy agreement, and each of the renewals, were initiated at arm's length, without any personal or familial connection between the parties; 3. the sole or primary purpose of the transaction was to generate income for the defendants; 4. the property was leased at commercial rates; and 5. the Defendants managed the leasing of the property in a businesslike way - that is, with the trappings of commercial enterprise.
2. The Plaintiff submitted that by their conduct in failing to disclose the damp problems at the building and the risk of mould proliferation the Defendants made a false or misleading representation in connection with the grant of an interest in land (that is, the tenancy agreement in breach of s 30 of the ACL) as a result of which the Plaintiff has suffered the loss and damage claimed by him in these proceedings. [259]

Defendant's Submissions

1. The Defendants submitted that this count adds nothing to the causes of action already pleaded by the Plaintiff in that if he fails on other causes he cannot succeed on this plea and should he succeed them it will be unnecessary for the Court to give further consideration to this claim.
2. The Defendants contended that the Plaintiff had failed to establish the factual precondition to the plea contained in the Statement of Claim at [17] as follows: Further, as at August 2013, the First and Second Defendant knew, as at that time, that the Property was affected any water penetration and dampness and or that mould was present at the property.
3. Further, it was contended that the Plaintiff did not lead evidence that established that but for the alleged representation he would not have entered into the residential tenancy agreements.

Consideration

1. The representation pleaded by the Plaintiff in the Statement of Claim was as follows: 18. Prior to their entry into the Tenancy Agreement, and/or prior to their agreement in 2014, 2015 and 2016 to extended the term of the tenancy Agreement, the First and Second Defendants: 1. failed to disclose to the Plaintiff the matters described in paragraph 17; and 2. thereby represented that the Property was suitable for habitation as a dwelling (the representation as to Property Condition). 20. As at August 2013, and/or at the time of each of the agreements to extend of the term of the Tenancy Agreement: 1. the Property was, as a result of the matters described in paragraph 17, not suitable for habitation as a dwelling, and 2. the Representation as to Property Condition was not true.
2. The Plaintiff did not explain how the alleged representation concerned the nature of the interest in land as opposed to the land itself. [260] Nor did the Plaintiff respond to the Defendant's submission that it had not demonstrated that but for the alleged representation he would not have entered into the residential agreements. Nor did the Plaintiff not identify evidence demonstrating reliance on the asserted representation and suffering consequent loss.
3. In light of my findings on other matters it is unnecessary to consider this issue further.

Causation

1. The Plaintiff has succeeded in his claim asserting breach of contract and breach of common law duty of care as indicated.
2. The question of causation at in respect of the breach of duty claim is governed by s 5D of the 2002 Act and in respect of the contractual breaches by the common law.
3. In Libra Collaroy Pty Ltd v Bhide [261] McColl JA stated: 220 Pursuant to s 5D(1)(a), the question whether their negligence was a necessary condition of the occurrence of harm is entirely factual, turning on proof by the plaintiff of relevant facts on the balance of probabilities in accordance with s 5E. The determination of factual causation in accordance with s 5D(1)(a) involves nothing more or less than the application of a "but for" test of causation 221 As Gleeson JA observed in Smith v South Western Sydney Local Health Network, factual causation as referred to in s 5D(1)(a) involves the application of common sense to the proved primary facts, it requires the consideration of the probable course of events had the omission (breach of duty) not occurred and, in a case of negligent omissions, requires the plaintiff to establish some underpinning factual circumstance that either of itself, or by inferential reasoning, enabled the Court to find that "but for" the negligent omission, the harm to the respondent would not have happened. (citations omitted)
4. Causation principles employed by the High Court in March v E & MH Stramare Pty Ltd [262] apply in breach of contract and the "but for test" is a common although not always sufficient test for causation. [263] It was not suggested that this would lead to any difference in outcome in the present case.
5. I will put to one side the Defendants' failure to warn the Plaintiff of the risk of water penetration and mould damage. It is unclear how it was being asserted the evidence supports that this failure caused the Plaintiff's loss. Leaving that aside, the Defendants did not contend that if a breach were otherwise established, causation would not be established. Plainly enough but for the Defendants' breaches and failure to take the other precautions referred to in a timely manner caused the Plaintiff's loss. Accordingly, the Defendants' failures were a necessary condition of the harm.

DAMAGES

1. The Plaintiff relied on an updated schedule of damages MFI 4(2). [264]
2. Three series of expert reports were relied on. Although the Defendants initially took issue only with the report of Mr En Lai Chan, [265] ultimately they agreed to the tender of all the reports reserving their position to argue matters going to the weight of the opinions expressed. [266]
3. The Plaintiff's evidence was that he prepared a schedule with his partner of the items of personal property affected, damaged and or destroyed annexing photographs of the items as well as supporting information such as receipts and other proof of purchase. [267] This document was used by Mr Chan for the purposes of preparing his report. With respect to the receipts, arrangements were made on Day 3 of the trial for the Defendants to inspect these. [268] No submission was advanced in respect of them.

Destroyed Items

1. Based on Mr Chan's report the Plaintiff claimed the market value of various destroyed items as follows: 3 Market Value of destroyed items

Sch Item # 1 at Court Slumber Time foam mattress electronic x2 - $1,626.27 Book page 179 Sch Item # 2 Casina Plush Queen mattress - $2,999.00 Sch Item # 6 Custom Moran lounge - $6,280.05 Sch Item # 8 Snooze double bed and base with mattress - $2,114.50 Sch Item # 10 2 Brown leather armchairs with brass stud detail - $2,612.50 Sch Item # 11 Winchester 3 seat lounge - $1,899.05 Sch Item # 14 Alpaca hand knitted rug from Paris - $133.33 Sch Item # 18 Pair racer motorbike gloves - $29.99 Sch Item # 19 Full Harley Davidson leather jacket - $256.33 Sch Item # 20 Leather motorcycle pants - $162.50 Sch Item # 21 Harley Davidson water proof pants - $59.50 Sch Item # 22 Mens leather shoes x 4 - $60.00 Sch Item # 23 DKNY rain jacket - $25.00 Sch Item # 24 Hugo Boss navy overcoat - $199.75 Sch Item # 25 Giorgio Armani wool scarf - $15.45 Sch Item # 26 American Stone vintage Roughneck jacket - $187.50 Sch Item # 27 BMW bomber jacket NY - $261.91 Sch Item # 28 Book shelves - $1,527.45 Sch Item # 29 Book shelves - $1,527.45 Sch Item # 30 Chest of drawers - $425.00 Sch Item # 34 Red Velvet upholstered custom 4-seater lounge - $2,100.00 Sch Item # 36 Fujitsu plasma TV and speaker - $1,200.00 Sch Item # 38 Slumber time single mattress - $639.20 Sch Item # 43 Bedding - wool underlay - $70.00 Sch Item # 44 Tempur pillows x 2 - $163.43 Sch Item # 45 Pillows x 2 - $57.14 Sch item # 46 Double mattress (no brand) - $350.00 Sch Item # 47 2 x Queen mattresses - $420.00 Sch Item # 60 10 pillows - $320.00 Sch Item # 61 5 Doonas - $400.00 Sch Item # 61 Large throw - $120.00 Sch Item # 61 6 x throw cushions - $120.00 Sch Item # 61 2 x lamp shades - $64.00 Claim for Depreciated market value of destroyed property $28,426.30

1. Mr En-Lai Chan was a lawyer who practices as a Chartered Loss Adjuster for 26 years specialising in the loss adjustment and assessment of Liability and Property Damage losses and claims. His report indicates that he did not have the opportunity to inspect and examine the damaged property but had been instructed to consider only the personal property listed in a Schedule of Loss annexed to his report and to prepare a Quantum Assessment Report based on the Schedule of Loss and other documents such as invoices and receipts that have been provided to him. [269]
2. Mr Chan took the year of the loss to be 2017 as the basis of calculating the age of each damaged property as this is the year when the loss was incurred. Mr Chan indicated that he sourced replacement values for the damaged items based on the description provided in the Schedule of Loss and disclosed the source of the values obtained. Where the description was inadequate and incomplete to source a suitable replacement, a suggested replacement cost was used based on an average value appropriate for the item or from the original purchase price. For aged items an appropriate depreciation value was applied.
3. The depreciated value was determined from an average life expectancy of the category in which the item belongs. The life expectancy was generally obtained from industry practice or from Mr Chan's opinion and experience in the loss adjustment industry. The report was also said to be based on various discussions with Ms Bruck. However, Mr Chan stated had he made all necessary enquiries which he believed are desirable and appropriate (save for any matters identified explicitly in the report) and he states that no matters of significance which he regarded as relevant have, to his knowledge, been withheld.
4. Based on Mr Chan's report the Plaintiff in his schedule MFI4(2) claimed the amount of $28, 426.30 for items that were destroyed by reason of the mould.

Defendants' Submissions

1. The Defendants argued that Mr Chan's report did not appear to be prepared in accordance with ordinary methodologies of loss adjustment nor the law of expert evidence. Specific criticism was advanced as follows: 1. The expert failed to view, inspect or examine each item of allegedly damaged property, and has expressed his opinions solely on the basis of the Schedule of Loss provided to him, which is identical with that used by Ms Tralau in her report. Proper, date-stamped photographs of each of the subject items were not made available to Mr Chan. 2. The report is expressed to have been based on "various discussions with Agnes Bruck" when she was not a witness to the proceedings and any instructions could not be tested. Further the nature and substance of those discussions are not set out or particularised, in the fashion required by Makita v Sprowles, [270] as follows: "…and, so far as the opinion is based on 'assumed' or 'accepted' facts, they must be identified and proved in some other way". That has not been done. 3. The Plaintiff's Closing Submissions appear to recognise some of those difficulties, and the "evidence in support of" the quantum advanced in the Schedule of Damages as set out in Annexure A to the submissions, does not include every item originally set out in the Schedule of Loss in Annexure B to Mr Chan's report. [271]
2. The Defendants argued that the whole report suffers from the manner of its presentation, and the statement of answers as conclusions, or in a rolled-up manner which fail to state, according to the criteria in Makita v Sprowles, the process of reasoning which has led to those particular answers and/or conclusions.
3. The Defendants made specific reference to the following items: 1. Item 6 (Custom Moran lounge): no evidence of the original acquisition cost is given, nor of the basis for the market value assigned by Mr Chan. 2. Item 10 (2 brown leather armchairs with brass stud detail): these armchairs appear to have been purchased as second-hand goods from Lawson's auction house. No evidence is given of their age (but it would be safe to assume that they are more than a year old), and it appears prima facie inappropriate to depreciate their value by 5% only (representing 1 year of life). 3. Item 14 (correctly numbered 16 on Schedule of Loss; Alpaca hand-knitted rug from Paris): no evidence of the original acquisition cost is given, nor of the basis for the market value assigned by Mr Chan. 4. Item 34 (red velvet upholstered lounge): no evidence of the original acquisition cost is given, nor of the basis for the market value assigned by Mr Chan.

Plaintiff's Submissions in Reply

1. In reply, the Plaintiff contended that the submission that the instructions of Ms Bruck may not be tested may be relevant to admissibility however the report has been admitted into evidence and Mr Chan was not required for cross examination. The Plaintiff further argued that Mr Chan properly described in his report the method of assessment adopted by him including: 1. where possible and appropriate he sourced replacement values for the damaged items based on the description provided in a schedule of loss, in which he disclosed the source of the values obtained: 2. where a description of an item was inadequate or incomplete, then , in order to allow him to source a suitable replacement, the suggested replacement cost was used based on the average value appropriate for the item or from the original purchase price; and 3. for aged items, an appropriate appreciation value was applied. The depreciated value belonged, and was generally obtained from industry practice or from his opinion and experience in the loss adjustment industry. [272]
2. The Plaintiff further submitted that in respect of the Defendants' specific criticism of items earlier referred to the Plaintiff has given evidence of the fact of ownership of the value, adopting the methodology described above. [273]

Consideration

1. Whilst it is true that Ms Bruck was not called as a witness, the Plaintiff's evidence was that he prepared the schedule with her. The Defendants did not cross examine the Plaintiff in respect of his ownership of the items, the claim that they were damaged, the price paid or the assumptions as to their condition underpinning the depreciation on which Mr Chan based his assessment. Nor did the Defendants seek to cross examine Mr Chan. No issue was advanced at trial as to the Plaintiff failing to mitigate his loss by seeking repairs.
2. I accept that Mr Chan did properly describe in his report the method of assessment adopted by him including: 1. where possible and appropriate sourcing replacement values for the damage items based on the description provided in a schedule of loss in which he disclosed the source of the values obtained, 2. Where a description of an item was inadequate then the suggested replacement cost was used based on the average value appropriate for the item or from the original purchase price; and 3. For aged items, an appropriate depreciation value was applied. The depreciated value was determined from an average life expectancy of the category in which the item belonged and was generally obtained for industry practice or from his opinion and was generally obtained from opinion and experience in the loss adjustment industry.
3. Precision in this area is not possible. In all the circumstances, I accept Mr Chan's assessment of the value of destroyed items and would allow the amount of $28,426.30.

Other Expenses

1. With respect to the other expenses claimed in dealing with the mould contamination the Plaintiff claimed the following: 4 Expenses incurred in dealing with the mould contamination

Restoration Persian Rugs x 2 by Mould Rescue - $1,199.00 Clark Removals - tipping & hazardous materials $4,319.55 Shaun Laycock & ors - tipping & labour - $5,180.00 53 Litre container - $108.00 Int'l Conversation Services site visit - $283.30 Engineer Report - DW Knox & Partners - $4,486.00 Kmart - large plastic tubs - $175.00 Monthly rent for Dover Heights storage - $4,000.00 C.Laycock, for part remediation of books & furniture - $1,800.00 Miele Hepa Vacuum and filters - $499.50 Ikea - temporary bedding & mattresses - $562.50 Ikea - temporary lounges, bedding & mattreses - $3,511.17 Loss of rental income - $8,609.00 Loss of rental income - Glebe - to date - $5,476.00 Rental Bond - $9,600.00 Total - Other expenses $49,809.02

1. The Defendants submitted that the two sums of rent claimed by the Plaintiff have not been the subject of proper evidence substantiating the same.
2. The Plaintiff submitted that in respect of the amounts claimed for loss of rent the Plaintiff's gave evidence of the same, in the schedule to his Affidavit of 12 July 2019.
3. Firstly, there is a claim for a loss of rental income from storing all affected items in a studio owned by him in Chippendale from 17 July 2017 to March 2018, which was otherwise leased at $315.38 a week. Mr Chan is said to have valued that loss at $8,609 [274] - that is, the amount of $11,039 less a discounted amount ("salvage value") of $2,430. The Plaintiff's schedule MFI 4(2) claims an amount of $8,609.
4. In respect of this claim the Plaintiff's affidavit (schedule A) asserted that this related to the move from "Bellevue Hill" of mould affected goods to Chippendale and then to Glebe. In evidence, however, the Plaintiff said that the goods were removed from a garage at Randwick to a building at Chippendale. Mr Chan's report whilst listing a salvage value suggested an alternative more economical cost associated with the loss of rent as a more appropriate loss and stated that where there are alternative costs only one should be used.
5. Secondly, loss of rental income from the garage at the University House in Glebe, where the Plaintiff has stored the damaged goods since they were moved out of the Chippendale property in March 2018. Mr Murphy's evidence was that the rent payable on that garage was $100 a week. [275] Calculated to the date of the filing of the Plaintiff's Schedule of Damages (MFI 4(2)) on 9 February 2021, less the discount ("salvage value") of $4,050 applied by Mr Chan, the rental amount claimed is $5,476. The alternative costs appear to be referenced to commercial self-storage costs.
6. A further claim is also made for monthly rent and loss of rental income. According to the Plaintiff's schedule $4000 monthly was paid for rent for storage at Dover Heights. [276]
7. The evidence does not explain the circumstances of the various storage sites being used. Clearly part of the reason for the cost being incurred has been the Plaintiff's failure to effect repairs during the period thus far. Doing the best I would allow $4000 for storage in lieu of the rental costs claimed as reasonable and necessary.

Items for Mould Remediation

1. The Plaintiff's schedule included the sum of $53,229.00 for mould remediation based on the report of Penny Tralau from Mould Rescue Pty Ltd.
2. As noted earlier, Ms Tralau first inspected the tenanted property on 23 March 2017 at the request of the Defendants. In a report dated 24 March 2017, Ms Tralau commented on the furnishings in the ground floor bedroom stating: Both beds, the carpet, furniture, artwork and general contents have condition 2 moulds. All the leather items, like jackets and shoes have condition 3 moulds. [277]
3. Ms Tralau further commented on the ground floor bedroom stating: The entire contents of this room needs to be packed out and transported offsite for remediation and storage whilst the remediation is in progress. ….. During the pack-out process a picture inventory of all items will be done and provided to all materially interested parties. There will a number of items that will be identified as non-restorable, this will be set aside for discussion. In this room there are several pieces of artwork that have been affected by mould and will be taken to a specialised Art Restoration Company called David Stein & Co conservation located in Darlinghurst, they will provide for restoration which will be passed on to you for restoration. [278]
4. Ms Tralau's first quotation was for $40,535. although it appears to include remediation of the property.
5. Ms Tralau was asked to inspect mould on items on 20 June 2019. [279] Ms Tralau's report of 12 July 2019 describes her as a having the highest designations as a certified restorer, mould professional and contents loss specialist with the Restoration Industry Association. It describes Mould Rescue as providing assessments for indoor air quality, mould, damp and water damage on residential and commercial properties and conducting mould remediation and structural drying remediation.
6. Ms Tralau documents that she attended a garage in Glebe supervised by Ms Bruck where the various items were kept. She was also provided with a copy of a schedule of loss dated 24 June 2019 prepared by Ms Bruck which was annexed. Ms Tralau states that the scope of remediation is to the items that were stored in the garage since 21 July 2017.
7. Ms Tralau emphasised that she did not mean to restore items to the original condition such as to fix legs or re-attach a finial. She stated she would test using the ATP method during the remediation until she achieved a result of zero and at the end and before delivery she would take a surface sample from each piece of furniture which is then sent to a lab from processing. She stated that the restorability of mould contaminated contents within a water damage house depended upon porosity, level of contamination vs risk factor and economic value vs intrinsic value.

Consideration

1. The Defendant drew attention to the fact that Ms Tralau proceeded on the basis of the Schedule of Loss compiled by Ms Bruck in circumstances where she did not give evidence. I have earlier commented on that submission. There was no challenge to the Plaintiff's ownership of the items
2. Ms Tralau did not report findings in respect of the various items of property that she examined. Nor did she explain what specific items in the schedule she proposed to work on and which items she proposed to discard. One can infer from the schedule that the items Ms Tralau proposed to work on were those that were not discarded or the subject of Mr Volante's report. The schedule provides some statements as to advice given by Mould Rescue relating to items but were not the subject of cross examination or restriction under s 136 of the Evidence Act 1995 (NSW).
3. The books referred to in the Plaintiff's schedule as item 15 appear to be incorrectly cross referenced to a Mould Rescue quote in item 32. It describes them as having been sealed in plastic containers and a small portion were cleaned but kept away from the family residence. This is presumably a reference in item 33 to "Part Mould remediation fee and Chis Laycock books furniture removal at a total of $1,800."
4. Item 18 in the schedule is a quote which was given for restoration of art work by the International Conservation Art Service as a cost of $13,596 but it stated that a deduction should be made for 4 art works cleaned by Ms Tralau. That appears to be a reference to item 42 which described the costs of restoration of 2 Persian rugs and 4 art works by Ms Tralau by Mould Rescue at a cost of $1199 being a sum earlier referred to.
5. Item 34 in the schedule described as a Mould Rescue quote for remediation dated 26 May 2017 totalling $111,474. The significance of this in the context of the Plaintiff's claim was not explained.
6. The Defendant did not ultimately object to the tender of Ms Tralau's reports. [282] No issue was taken as to the Plaintiff's ownership of the items proposed to be remediated or the damage asserted as having been sustained. The fact that the relevant remedial action has not yet been undertaken is not a factor precluding recovery. In McGregor on Damages the learned authors state: In the case of goods other than ships the cost of repair has now become established as, prima facie, the correct measure of the claimant's loss. Accepted some time ago in a number of first instance cases, this was confirmed by the Court of Appeal in Darbishire v Warran where it was said by Harman LJ that "it has come to be settled that in general the measure of damage is the cost of repairing the damaged article". Moreover if, despite the repairs, the market value of the goods is less than before, the claimant should be entitled to such diminution in value in addition to the cost of repair. Thus in Payton v Brooks, Roskill LJ said: "There are many cases … where the cost of repairs is a prima facie method of ascertaining the diminution in value. It is not, however, the only method of ascertaining the loss. In a case where the evidence justifies a finding that there has been, on top of the cost of repairs, some diminution in market value … I can see no reason why the plaintiff should be deprived of recovery under that head of damages also." Thus in The Georgiana v The Anglican, the claimant was held entitled to recover, in addition to the cost of partial repairs to a yacht which did not make her as strong and seaworthy as formerly, the amount by which the value of the partially repaired yacht was less than before the damage occurred.(omitting citations) [283]

Artworks

1. The Plaintiff claimed restoration costs for 40 artworks.
2. Mr Matteo Volanté prepared a report dated 27 June 2017 as to the condition of 40 art works inspected on 20 June 2017. That report was updated by a further report dated 12 July 2019 and 5 February 2021. [287]
3. The first report indicates that most of the artwork had visible mould at the front in the form of grey, white or discoloured dots and stains. Some artworks have been affected only at the back, with "foxing-type" stains. He stated that where mould had not been detected there was a likelihood of a high concentration of mould spores being present on the surface, between the canvas and the auxiliary support, as the artworks have been stored or hanging in the same environment as the others. He recommended a two-stage treatment proposal comprising mould remediation and potential aqueous cleaning. In some cases he stated that the mould may have permanently damaged the surface sheen or paint layer. In these instances, local application of surface coating or in-painting may be required. In his second report he indicated that this may be required for the artwork most significantly affected.by mould which can only be determined after Stage 1 cleaning.
4. Mr Volonté stated that the range in cost of Stage Two treatment is due to the current uncertainty of how many artworks require further treatment, and what those treatments might include. He indicated the price may change should further work be required and any price increase would be sought before work is undertaken.
5. That first report indicated costs as at 27 June 2017 as $13,596 (including GST) with Stage 2 cost to be confirmed. As at 12 July 2019 those costs rose to between $27,444 and $56,244 including a Stage 2 estimate of between $14,400 and $43,200 plus GST. The costs (including GST) as at 5 February 2021 were estimated at between $30,827.50- $63,211.50 including Stage 2 estimated $16,192 - $48,576.

Plaintiff's Submissions

1. The Plaintiff in reply stated that the Defendants did not call for the production of any notes that Mr Volonté may have taken of his instructions form Ms Bruck which would be the usual course to adopt and they did not require Mr Volonte for cross examination. It was argued that as Mr Volonte gave evidence that he inspected the artworks on 20 June 2017 such that the Court would be satisfied that his assessment is based on his own observations particularly since he described the observable damage. The Plaintiff argued that if the Defendants wished to run a case on the Plaintiff's loss and damage based on the intrinsic value of his damaged good then they were required to plead such a defence and adduce evidence relevant to it. They took neither one of those steps and it was not now open to them to attempt to avail of such a defence at in their submissions
2. The Plaintiff argued that the Defendants complaint as to his failure to carry out remedial work to date should be rejected. This is so as he was not obliged to have carried out the remedial works before the hearing date, and the Defendants have not pleaded any defence to suggest that he has not mitigated his loss and damage. The Plaintiff further contended that the very fact that the Plaintiff has engaged in this lengthy litigation gives rise to the inference that it is his intention to carry out the remedial works, including remedial work to his artworks that were produced by Ms Bruck.

Defendant's Submissions

1. The Defendant's argued that the salient features of Mr Volonté's reports are as follows: 1. Mr Volonté's report was first prepared at Ms Bruck's request. As earlier noted, Ms Bruck has not given evidence in the proceedings. Mr Volonté's further report dated 12 July 2019 was also addressed to Ms Bruck; 2. A further difficulty is that the Plaintiff has not put into evidence an inventory of each of the 40 allegedly mould-affected artworks. Nor is there a photograph of each of the allegedly affected artworks; 3. There is no evidence in the proceedings of the ownership of the 40 artworks; 4. Nor is there any evidence of the market value of the artworks. That makes, applying Ms Tralau's methodology of "restorability", referred to above, the Court's task of assessing damages impossible, because the Court has no evidence as to whether the costs remediation of the artworks is justified; 5. A further difficulty in the assessment if damages lies in the very loose estimate given by Mr Volonté' for the cost of undertaking Stage Two cleaning. [288] Including GST, the very broad range of $30,827.50 -$63,211.50. It is not appropriate for the highest total estimated figure of $63,211.50 to have been stated in the Plaintiff's schedule of damages. [289]
2. The Defendants contented that that none of the works have to date been carried out and that in order to recover damages of the sort that the Plaintiff seek in the present case he must either point to the fact that the work has been done to a sufficient fixity of intention in his resolve to carry out the remedial work it. It was submitted that there was no evidence before the Court that the Plaintiff ever intends to carry that work and there is no evidence capable of proving that the Plaintiff ever intends to carry out that work and there was no evidence in his affidavits of a fixity of intention to carry out the works. To the contrary, the Defendants assert that the Plaintiff in cross examination attempted to evade the issue such that he cannot establish that he has in fact suffered damage in the amount claimed. [290] The Defendants relied on Tito v Wadell (No 2). [291]

Consideration

1. The Plaintiff's evidence made reference to paintings as "my paintings" and given to me by my partner. [292] Photographs of some paintings were also tendered in evidence. [293] The question of ownership was not specified in the Defendants' Statement of Issues and the matter appears raised first in submissions.
2. Mr Volonté's reports did not acknowledge that the author had read the Code of Conduct pursuant to schedule 7 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) in accordance with UCPR 31.23. Nor did the report comply with UCPR 31.27. Notwithstanding this no objection was advanced as to admissibility.
3. I accept the Plaintiff's argument that if the Defendants wished to argue that the cost of repairs exceeded the value in the market of the damaged article then it was obliged to plead this as a matter of mitigation and seek to establish this. Although the Defendants at one point foreshadowed such an argument being advanced and seeking an amendment to do this was ultimately not advanced.
4. I have addressed the Defendants' submissions as to the failure to effect repairs at [299]-[300]. In my view, the Plaintiff has clearly suffered loss and the question is one of assessing the compensatory damages payable. Whether or not the Plaintiff actions the repairs matters not, as the value of the repairs is to compensate for the diminution in value.
5. The context in which Tito v Wadell (No 2) cited the need to demonstrate a fixity of intention involved a contractual obligation to do certain work. [294] Needless to say the facts of Tito are distinguishable from those in the instant proceeding which involved damage to chattels.
6. In assessing the loss sustained by the Plaintiff I bear in mind the value of the repairs at the time as indicated in the first report. I acknowledge that the Stage 2 costs were not particularised until the second and third reports and even then within a range. The reports do not identify the basis of the estimates bearing in mind Mr Volonté's acknowledgement that this can only be ascertained after the completion of Stage 1 work. Bearing in mind the uncertainty of Stage 2 and doing the best I can I would allow transport costs, Stage 1 work costs as well as a modest allowance to account for the possibility of Stage 2
7. Accepting that the question of the need and extent for stage 2 repairs is uncertain, I would overall allow $22,000 ($20,000 plus GST).

CROSS CLAIM

1. The Defendants/Cross Claimants by their Cross Claim asserted that on or about 24 August 2016 the term of the residential tenancy agreement dated 26 July 2013 was extended for twelve months ending on 5 August 2017 and the rent payable would be increased to $11,626 per month. The Defendants/Cross Claimants claimed that in breach of their agreement the Plaintiff/Cross Defendant failed to pay any rent for the period 5 April 2017 to 21 July 2017 being an amount of $41,393.61. [295] That amount was admitted by the Plaintiff/Cross Defendant. [296]
2. By their Defence to the Cross Claim the Plaintiff/Cross Defendant admits that he did not pay the rent for the period alleged but asserts that he was not required to pay rent in circumstance of the Defendant/Cross Claimants' failure to provide the property in a state that was fit for habitation or to maintain it in a reasonable state of repair such that the property was at all times vulnerable to water perpetration and in fact suffered from such water penetrations such that mould existed and proliferated with the property to the extent that it was not fit for habitation by the Plaintiff/Cross Defendant. Alternatively it was asserted that it is entitled to set off any amount that the Court finds the Defendants/Cross Claimants are liable to pay him against any unpaid rent that the Court finds he is liable to pay the Cross Claimants.
3. The Plaintiff/Cross Claimant submitted that the Cross Claim for unpaid rent did not account for the bond monies that were wrongly claimed by the Defendants in their reckoning of outstanding rent. Moreover in circumstances where the property was uninhabitable because of the extent of the dangerous mould contamination, the Defendant/Cross Claimants are not entitled to demand or to receive payment of any amount of the monthly rent as they provided no consideration under the lease during the period when the Plaintiff/Cross Defendant and his family were unable to use the property for its intended purpose as a dwelling that was fit for habitation.
4. Although the Plaintiff/Cross Defendant in submissions foreshadowed addressing the matter further in response to the Defendant/Cross Claimant's submissions the latter did not do so except to concede their recovery of the bond monies. The Plaintiff/Cross Defendant in reply reiterated his earlier submissions contending that in the event the Court were to dismiss his claims for the Defendant's breaches that the rent would be abated pursuant to section 43 of the 2010 Act.

ORDERS

1. For the reasons herein stated: 1. The Plaintiff has succeeded on his claim in the sum of $88,307.35 2. The Defendant/Cross Claimants succeed on their Cross Claim in the $31,793.61 3. Pursuant to s 90(1) of the Civil Procedure Act 2005 (NSW) there will be a verdict and judgment in favour of the Plaintiff in the sum of $56,513.74 4. Pre-judgment interest is allowed on the sum referred to in (3) at the rate to be calculated in accordance with District Court Practice Note (Civil) No 15 from 27 October 2017. 5. I defer entry of final orders to enable the parties to confer, check my calculations, with a view to presenting proposed Consent Orders that accord with this judgment and any agreement as to costs within 14 days. 6. Parties have liberty to lodge with my Associate in Chambers any agreed Consent Order. 7. In the event of any disagreement, the parties are to: 1. Approach my Associate with a view to relist the matter for further argument as to proposed final orders within 14 days. 2. Submit to my Associate within the period referred to in (7)(a) their proposed orders, and any documents and written submissions proposed to be relied upon.

Endnotes

1. Statement of Claim at [16].
2. First Cross Claim filed 6 June 2018.
3. Defence to Cross claim at [5(c)] and [8(b)].
4. Defence to Cross Claim at [5(d)].
5. Statement of Claim at [7] and [13]
6. Statement of Claim at [25].
7. Statement of Claim at [9]-[11] and [15]-[16].
8. As adopted by the Fair Trading Act 1987 (NSW). See Statement of Claim at [17]-[23].
9. T 13.5-.7 and Plaintiff's Outline of Opening Submissions MFI 5.
10. T 32.11-.18 (Ms Graham), T 78.37-.46 (Plaintiff), First Defendant T 171.1-.20.
11. T 7.15-.33.
12. T 107.24-.35.
13. T 268.10-.38.
14. T 250.15.
15. Exhibit A, tab 21 at p 437.
16. Exhibit A, tab 25 at p 617.
17. T 239.4-24.
18. Exhibit A, tab 15 - Affidavit of Christina Graham dated 31 August 2018 at [5].
19. T 27.1-8.
20. Exhibit A, tab 15 - Affidavit of Christina Graham dated 31 August 2018 at [5]. The Second Defendant also gave evidence of brand new cupboards being installed T 168.26-.28.
21. Exhibit A, tab 15, Annexure A to Affidavit of Christina Graham dated 31 August 2018 at p220-227.
22. Exhibit A, tab 15, Annexure A to Affidavit of Christina Graham dated 31 August 2018 at p 227.
23. Exhibit A, tab 15 - Affidavit of Christina Graham dated 31 August 2018 at [12].
24. T 26.35-.40.
25. T 27.2-.3.
26. T 26.42-.45
27. T 36.41-.45.
28. T 37.20-.24.
29. T 37.48- 38.2.
30. T 27.30-.39.
31. T 26.45-.48.
32. T 27.18-.25.
33. T 26.33-.48.
34. T 27.23-.25.
35. T 27.47-.28.3.
36. Exhibit A, tab 15, Annexure A to Affidavit of Christina Graham dated 31 August 2018 at p 226.
37. Exhibit A, tab 15, Annexure A to Affidavit of Christina Graham dated 31 August 2018 at p 222.
38. T 252.1-.20.
39. Exhibit A, tab 15, Annexure A to Affidavit of Christina Graham dated 31 August 2018 at p 224.

Amendments 29 July 2021 - Reasons as published incorporate typographical amendments made with consent of the parties and advised amendments pursuant to UCPR 36.17 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: 29 July 2021