Patricia Lo Presti v G Mak and M Fung

Onus and standard of proof

1. The applicant bears the onus of proving her case on the balance of probabilities.

The hearing

1. The applicant appeared in person.
2. The respondent was represented by the managing agent Mr Martin.
3. Both parties confirmed that they had provided a copy of the documents they intended to reply upon to the Tribunal and each other. Both parties confirmed that they were ready to proceed in relation to the hearing.

Evidence

1. The tenant gave sworn evidence in relation to the matter and relied upon a bundle of documents.
2. The crux of the tenant's case is as follows -
3. The premises are a top floor unit in a block of eight units. All of the units are owned by the respondent.
4. In November 2013 the tenant informed the respondent that there was a problem with water pooling on the balcony of the premises.
5. The tenant arranged for a handyman to attend the premises to carry out repairs.
6. The applicant continued to experience problems with water pooling on the balcony and was forced to use a long stick to assist the water to flow through the water recess.
7. On 13 March 2014 the tenant woke to find most of the premises under water. An urgent text message was sent to the respondent. Tradespeople were arranged to attend the premises by the respondent.
8. The tenant also complains of gutters not being cleaned and water overflowing from the gutters of the premises when it rains.
9. The tenant holds the view that the respondent was aware or should have been aware that the premises were prone to flooding. The tenant holds the view that the premises do not meet Australian Building Standards in regards to water wastage. The tenant also believes that other tenants of the premises have had similar problems in regards to water entering their units.
10. The respondent's real estate agent, Mr Martin, gave sworn evidence in relation to the matter and also relied upon a bundle of documents. The landlord's agent also provided a copy of the complete residential tenancy agreement at the request of the Tribunal and the managing agency agreement.
11. The crux of the landlord's case is as follows-
12. The landlord is not responsible for anything the tenant complains of.
13. The landlord had no prior knowledge of any issue with flooding in the applicant's premises or any other premises in the block.
14. The landlord first became aware of an issue with water pooling in the applicant's premises in November 2013. The landlord arranged immediately for a qualified handyman to attend the premises and carry our repairs. The landlord heard nothing further from the tenant until March 2014, after the flooding of the premises.
15. The Sydney region experienced severe storms during the period that the flooding occurred.
16. The landlord took immediate steps to have the premises cleaned and the carpet dried.
17. A rent credit was given to the tenant to acknowledge that the premises were partly uninhabitable from 13 March 2014 until 17 March 2014

FINDINGS

1. The Tribunal has jurisdiction to determine the matter, for the reasons stated above. The Tribunal will deal with each of the orders sought by the applicant.

'An order that the respondent is to pay the applicant the sum of $5200.00 being for the reimbursement of a rent paid from 29 April 2013 until 27 April 2014 (rent reduction)'

1. The tenant appears from the submissions made to the Tribunal to be seeking a reimbursement for rent as she believes that she was paying more rent than the other tenants at the same premises. The tenant has given evidence that a tenant in unit 8 was charged $360.00 per week rent from the landlord and the tenant that replaced him was paying $420.00. Unit 1 was paying $360.00 per week and Unit 6 was paying $360.00 a week. The tenant believes that her rent was not "constant" with the other units that were the same size in the block. The tenant entered into an agreement with the landlord to pay $400.00 per week and she believes that she should only have been paying $360.00 a week. The tenant seeks a refund of the excessive rent paid.
2. The Tribunal has no jurisdiction to determine the amount of rent that a landlord is able to charge for the premises. The rental market determines the rental amount the landlord is able to charge. There are no laws or regulations that determine how much rent a landlord is able to charge. The Tribunal only has jurisdiction to determine if a rent increase under an existing tenancy agreement is excessive. There is no evidence before the Tribunal that the landlord issued to the tenant a rent increase notice during the period of the tenancy that would give to the Tribunal jurisdiction to determine the general market level of rents for comparable premises. The Tribunal is also able to determine if rent is excessive if there has been a withdrawal by the landlord of any goods or services or facilities provided with the premises. The Tribunal notes that in this regard the landlord has given to the tenant a rent credit of $400.00 for the period of6 days when the carpet was flooded and machines were used to dry the carpet.
3. The landlord has not issued to the tenant a notice to increase the rent. The Tribunal has no jurisdiction pursuant to section 44 to determine that the rent is excessive.
4. The landlord has credited to the tenant $400.00 rent for the 6 day period that it was arguable that there was a withdrawal of services. The tenant continued to reside in the premises during this period. The rent was abated by the landlord, and the tenant received a rent rebate of $400.00.
5. Further any application for an order that the rent is excessive must be made under an existing or proposed residential tenancy agreement. The tenant gave vacant possession to the landlord on 27 June 2014. This application was made on 7 July 2014. The Tribunal has no jurisdiction to make the orders sought by the tenant.
6. The Tribunal dismisses this part of the tenant's claim.

'The respondent compensates the applicant the sum of $3283 for economic loss suffered by the applicant'

1. For the Tribunal to make an order for economic loss the tenant must satisfy the Tribunal that the landlord has breached a term of the tenancy agreement.
2. The tenant in this matter argues that the landlord was aware or should have been aware that the building did not meet Australian Building Standards and that there was an issue with flooding.
3. Section 52 of the Act contains the landlord's duty to provide the premises in a reasonable state of cleanliness and fit for habitation at the commencement of the tenancy. Section 63 of the Act imposes upon the landlord a general obligation to 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.
4. The case law in relation to section 52 and 63 states that a landlord is generally not required to have tradespersons do inspections of the premises before the commencement of the tenancy unless the landlord has actual notice that a defect may exist; and a landlord can only be held liable for those defects existing at the commencement of the tenancy that were discoverable by reasonable non-technical inspection. ( New South Wales v Watton [1998]NSWSC589 and Jones v Bartlett [2000]HCA56)
5. The landlord denies having any knowledge of an issue with flooding in the premises. The tenant holds the strong view that the premises do not meet Australian Building Standards in relation to water wastage outlets. No evidence has been provided by the tenant to support this view. The tenant may be correct in relation to her view; however, depending on when the building was built it may be that the standards did not apply at that time. Nonetheless there is no evidence of any legal impediment to the occupation of the residential premises as a residence of the period of the tenancy.
6. The tenant further seeks to rely on a number of statements signed by other tenants in the premises in relation to flooding. Mr Michael who previously occupied Unit 8 has provided a statement to say that during the 2 years of his tenancy he made numerous reports to the managing agent regarding flooding to the premises from water entering from the balcony. Mr Shrestha the occupier of unit 1 of the building states in his report that rain enters his unit from the balcony when it rains. The resident of Unit 3 has provided a statement stating that water enters his unit when it rains from the balcony. The resident of unit 5 has provided a statement that water enters the unit from the balcony when it rains. The resident of unit 3, Mr Deng has provided a statement that when it rains, water entrees the unit. Mr Deng further states that he has informed the managing agent a number of times about the water entering the nit from the balconies.
7. The landlord's managing agent gave sworn evidence that he has not previously been placed on notice of any issue with water entering the units from the balcony when it rains.
8. The Tribunal has considered this conflicting evidence. There is no evidence that a previous tenant has advised the managing agent in relation to the applicant's premises about this issue. There are two statements, one from Mr Michael (unit 8) and one from Mr Deng (unit 3) stating that they have previously informed the managing agent. No particulars are provided in the statements of when or how they advised the managing agent. The Tribunal has weighed up the evidence of these two statements with the sworn evidence of the managing agent and the Tribunal places greater weight on the sworn evidence of the managing agent. It is an offence to give false or misleading evidence to the Tribunal. The Tribunal prefers the sworn evidence of the managing agent as against the signed statements of the two other residents.
9. The Tribunal is not satisfied on the evidence before it that the landlord has breached his obligations in relation to section 53 of the Act.
10. The Tribunal has considered whether there has been a breach of section 62. The landlord's obligation to repair is dependent on notice. The tenant told the Tribunal that she first became aware of the issue in July 2013. The applicant told the Tribunal that she put the landlord on notice however, was not able to give any particulars of when or how she did so. The tenant first notified the landlord in November 2013 by email of an issue with water flooding on the balcony. The landlord made immediate arrangements for a tradesperson to attend the premises and carry out repairs. The tenant now states that those repairs were not adequate and that she was required to use a stick to try and unblock the drain. The tenant states that she advised the landlord of an ongoing issue with the drain. The tenant has not been able to produce any evidence of having advised the landlord of the ongoing issue. The landlord has given evidence that he heard nothing further from the tenant until the flood in March 2014. The landlord then took immediate measures to carry out repairs.
11. The tenant also raised the issue of every time it rained water overflowed the gutters of her unit. The tenant claims that she notified the managing agent on several occasions. There is no evidence to support her claim that she put the landlord on notice of this issue.
12. The Tribunal is not satisfied on the evidence before it that the landlord has breached the terms of the tenancy agreement by failing to carry out repairs. The Tribunal is satisfied that once the landlord was put on notice in November 2013 he took immediate steps to repair. The Tribunal is satisfied that as soon as the landlord was put on notice on 13 March 2014 he took immediate steps to repair. There is no breach of section 62 of the Act. The Tribunal is not able to make an order for compensation.
13. The tenant also raised an issue of an increased electricity account. No evidence has been provided to support this part of the claim. Nonetheless as the Tribunal has found that there is no breach by the landlord, no orders as to loss can be made against the landlord.

'The respondent compensates the applicant the sum of $4000 for physical inconvenience suffered by applicant.'

1. The Tribunal has found that there has been no breach by the landlord. The Tribunal finds that the damage to the property occurred otherwise than as a result of a breach of an agreement. The Tribunal is not able to make an order for physical inconvenience suffered by the applicant. The applicants claim for compensation for physical inconvenience caused by the breach of RTA s 63, is a claim for non-economic loss involving personal injury. The Civil Liability Act 2002 (NSW) (CLA) provides that damages for non-economic loss cannot succeed unless the severity of the non-economic loss is at least 15% of a most extreme case: CLA s 16(1); Flight Centre v Louw [2011] NSWSC 132. Damages or compensation cannot be awarded where the injury is below 15% of a most extreme case. There is little evidence from the tenant to support her claim for physical inconvenience. The applicant carries the onus of proving her claim for non-economic loss and has failed to do so. Accordingly the claim for compensation for non-economic loss is dismissed.
2. The Tribunal is not satisfied that the application has discharged the onus placed upon her in relation to this part of the claim.
3. The applicant sought costs in relation to her attendance at the Tribunal on 14 August 2014 when the respondent was not able to attend due to medical grounds. The applicant states that she had to take a day off work and was not renumerated. The applicant has failed to provide any evidence of lost wages. The applicant has not been successful in her claim. The Tribunal is satisfied that the respondent has provided evidence of his inability to attend and there is no basis upon which the Tribunal will make a cost order against the respondent. M Eftimiou General Member Civil and Administrative Tribunal of New South Wales 30 October 2014 I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 February 2015