Pecipajkovski v Culo; Culo v Pecipajkovski [2025] NSWCATCD 181;

1. Both Applications were heard on 31 July 2025.
2. In these Reasons I will refer to case no. 2025/00111110 (Pecipajkovski v Culo) as the tenant's claim and case no. 2025/00144211 (Culo v Pecipajkovski) as the landlord's claim.
3. Documents relied upon by the tenant were admitted and marked Exhibit A; those relied on by the landlord admitted and marked Exhibit B. In addition to this documentation oral evidence was given at the hearing by the tenant, his wife and the landlord.

1. The tenant's documents do not include a copy of the RTA, either the one dated 8 May 2023 that is within the landlord's documents nor the one dated 8 May 2024 - also in the landlord's material.
2. The tenant does include an Entry Condition Report which is stated as having been completed on 8 May 2023 and prepared by the landlord. That commences at page 16 of Exhibit A. In relation to the bedrooms the subject of the tenant's Application the report makes no mention of rainwater leaking, carpet damage or mould.
3. There are three unusual and unexplained features of the report. Firstly, at page 26 of the Exhibit under the heading "Tenant's Acknowledgement and Signature" the date recorded is 8 March 2022 not - as per the first page of the report - 8 May 2023. Secondly, the person described as "Main Tenant" is not the tenant the subject of these proceedings but a Robert Crowe. Thirdly, the document does not on its face bear the signature of the landlord.
4. An email on page 15 of the Exhibit of the tenant to the landlord dated 24 March 2025 says that the Entry Condition Report was not received by him at the time when the tenant moved in.
5. At page 2 of the Exhibit is either a letter or an email of the tenant to the landlord dated 20 February 2025. It refers to a conversation and confirms that the tenant was terminating the RTA. He says "As explained before, the back room is leaking water every time it's raining". He says that the leaking water soaks the carpet and causes mould, and that that causes his son to have allergic reactions. The tenant says "the room is uninhabitable", and that vacant possession would be given on 21 March 2025.
6. A letter or email of the landlord to the tenant dated 5 March 2025 is at page 3. In it the landlord acknowledges receipt of the Termination Notice. He notes the tenant's claim that "the back room is uninhabitable" and asks which room the tenant is referring to as there were two rooms in that section of the property. He also says that the tenant's letter/email was the first time that he had been notified of the issue since repairs were completed in April 2024, and that to properly assess the situation he will need to conduct an inspection. He enquires as to a suitable date and time. He then says that as a precautionary measure he recommends that "the back room" not be occupied until further notice to prevent any potential health risks or further damage.
7. The tenant responds on 7 March 2025 in writing. He says that the landlord was "... fully aware of what room it is"; further, that the tenant had called to advise of the problem on 17 February 2024. The letter then sets out text messages between the tenant and landlord including a text of the landlord of 20 February 2024 saying "I cut the carpet out of the cupboard and removed it and patched the ceiling and put silicon on the roof. A couple of places where it looked like it may be leaking".
8. Another text message set out in the 8 March letter/email is also of the landlord and also dated 20 February 2024. In it he said that the "patching" needs to be dry before he could paint.
9. A further text message set out in the email is that of the tenant to the landlord dated 21 May 2024 saying "Also, just letting you know we can't use the back room because of the mould smell. Because of the heavy rain in the last three weeks. It's too dangerous for our son". A reply of the landlord of the same day is also set out in the email. In it, he says "Are you airing this room out?".
10. A picture of the floor of the walk-in wardrobe appears on page 6 of Exhibit A. Pictures of the ceiling showing some dampness appear at pages 7 and 8.
11. At page 9 is a further email of the landlord to the tenant dated 7 March 2025. Referring to what is described as "the back room (bedroom 3)" the email says "... you last raised this issue on 21 May 2024 and have not mentioned it since".
12. An email of the tenant of 21 March 2025 at page 11 of the Exhibit indicates that the property had been vacated on that day and keys left on the front step.
13. A WhatsApp message of the landlord at page 12 of the Exhibit advised that he would be conducting the outgoing inspection independently.
14. Commencing on page 28 of the Exhibit is an Exit Condition Report. It says that it is prepared by the Landlord and was completed on 24 March 2025 ie 3 days after the tenant had vacated possession. Relevantly for the purposes of the tenant's Application, on page 34 although there is reference to bedroom 3 the "agent comments" are "no visible signs of mould", "no visible signs of water ingress/damage", "no mouldy odours or other odours or similar", and "no signs of water entry during rainy days". There is nothing recorded under "Tenant Comments".
15. At page 38 are consultation notes of a Dr. Gobran in respect of a person who I was told at the Tribunal hearing is the tenant's son. The notes state that they are recorded on 15 May 2024 and "eczema, atopic" is stated as the "reason for visit". The notes refer to a specialist referral to a Dr Schumack and the words "advisory skin care" are also recorded.
16. There is no expert report, witness statement, statutory declaration or affidavit of the tenant.
17. At the Tribunal hearing the tenant said that the landlord came to the premises to fix a water leaking problem on 20 February 2024 and that when he vacated possession in March 2025 the premises were in an "immaculate condition". He says the landlord refused to do the exit inspection with him and that he did not sign the Exit Condition Report.
18. Vacating the premises was, the tenant says, stressful. He had to pay $3,000 in removalist fees, find alternate premises, and another school for his son.
19. He conceded when questioned by the landlord that he had not undertaken any testing for mould, that the medical report within the tenant's documents does not, by its terms mention mould and that the Exit Condition Report did not mention any problem with water leaks. He further conceded that the Exit Condition Report was not returned by him to the landlord; that he has never been affected by mould nor took photographs of any observed mould.
20. The tenant's wife Ms Tarkhanoba also gave evidence. She said that she was present at the premises when the landlord attended in February 2024 to carry out repairs to the roof. She says that there was mould in one of the bedrooms after rain.
21. So far as her son's medical condition was concerned, Ms Tarkhanoba said that her son had a skin condition which she said can be triggered by mould. That caused her stress. When the problem was not adequately fixed by the landlord they decided to move.
22. Ms Tarkhanoba conceded, on questioning from the landlord, that no expert testing had been undertaken in relation to the contention of mould, and that she did not communicate to the landlord any health issues concerning her son.

1. Commencing at page 2 of Exhibit B is what the Tribunal takes to be the landlord's statement. He refers to the tenant entering into an RTA on 8 May 2023 in respect of the premises, a five bedroom property; the term of the agreement being six months commencing on 22 May 2023 and ending on 22 November 2023. The original rental amount was $1,500 per week and the agreed bond - $6,000. The tenant, he says, took early possession on 10 May however he says that the $6,000 bond was not paid until 23 May 2024.
2. The landlord further says that the tenancy became in November 2023 a periodic one until 21 May 2024 and that a new tenancy agreement was entered into on 22 May 2024 for a fixed term of 12 months, ending on 22 May 2025.
3. The landlord says that the new tenancy agreement was terminated by the tenant on 1 March; the notice nominating 21 March as the end date. The keys, he says, were handed back and vacant possession obtained on 21 March.
4. So far as the water leak was concerned the landlord says that he was notified on 17 February 2024 and that on 20 February 2024 he fixed the leak, patched the ceiling and removed a small section of carpet from a built-in wardrobe of bedroom 3. He says that he informed the tenant at the time that the small section - about 100 mm in diameter - in the wardrobe ceiling would need to be dry before it could be painted.
5. He says that on 21 May 2024 he was informed by the tenant that the tenant was not going to use bedroom 3 "because of a mould smell". The tenant did not at the time report any further roof leaks and that, at that stage, the only repair that remained was to paint the small section of ceiling within the built-in wardrobe and replacing a small section of carpet also in the wardrobe. He also says that as there were no further roof leaks he informed the tenant that the room should be aired out and cleaned to ensure that moisture from the initial roof leak would effectively dry out.
6. The landlord says that the tenant did not raise any issues between February and May 2024 and that what was communicated in May was only "the smell of mould"; not leaks of any kind.
7. The landlord says that on 22 May 2024 the tenant decided to enter into a new tenancy agreement for a further 12 months but that at that time the tenant had not provided to him any evidence showing the visual presence of mould in bedroom 3. Nor had he been provided with any evidence to support any contention that bedroom 3 was uninhabitable.
8. He says the tenant entered into the new lease agreement and continued to live at the premises until March 2025.
9. At the time of the tenant vacating the landlord says that, from the outgoing condition report inspection, the photos of bedroom 3 did not show the visible presence of mould or water damage.
10. The landlord says that he received no comments from the tenant, nor photos nor "any other information" regarding the outgoing inspection report. He also says that after the tenant vacated he (the landlord) attended the property on 22, 23, 29, 30 and 31 March 2025. He says that on each of those days it was raining. On none of those days was there any water leak present in bedroom 3.
11. A sketch of the premises is at page 10 of Exhibit B showing bedrooms 3 and 4 on the first floor.
12. An 8 May 2023 RTA commences at page 13 recording the name of the tenant, the name of the landlord, the description of the premises, and a lease term of six months commencing 22 May 2023 and ending 22 November 2023.
13. Clause 19.1 of the RTA is the landlord's agreement to ensure that the premises are reasonably clean and fit to live in. Clause 19.3 is the landlord's agreement to keep the premises in a reasonable state of repair, considering the age of, the rent paid for and the prospective life of the premises. The signatures of the landlord and tenant are at page 28.
14. An entry condition report dated 8 May 2023 commences at page 31. The floor covering of bedroom 3 within the walk-in wardrobe is shown in the photograph on page 84.
15. A text message at page 105 dated 17 February 2024 enquires as to whether the landlord would be attending the premises "on Monday... to fix the leaking roof". Another text message of 20 February from the landlord says:

"I cut the carpet out if [of?] the cupboard and removed it and patched the ceiling and put silicon on the roof. A couple of places where it looked like it may be leaking".

1. A later email of the same day of the landlord says that the patching area needed to be dry before it could be painted.
2. On page 109 is a text message of 21 May 2024 of the tenant saying:

"Also, just letting you know we can't use the back room because of the mould smell".

1. At page 141 is an email of the landlord to the tenant dated 6 June 2024 attaching a copy of a new lease agreement "...for your school". What commences at page 142 is a further RTA this time with an agreement date of 8 May 2024. The same landlord, tenant and premises are recorded and the stated term of the agreement is 22 May 2024 to 22 November 2024. Page 157 purports to record the signatures of both landlord and tenant. At page 160 of Exhibit B is a further email of the landlord to the tenant dated 7 June 2024 purporting to attach "...a copy of page 2 for the new lease document for your school". Page 161 appears to be the second page of the new lease agreement although the term of the agreement in this document is stated as being 22 May 2025 whereas the RTA commencing at page 142 of the Exhibit shows that the agreement was to end on 22 November 2024.
2. Photos of the walk-in wardrobe of bedroom 3 are at pages 248 to 254.
3. Toward the end of Exhibit B behind a tab marked "2025 00144211" is what the Tribunal takes to be a further statement of the landlord. At page three there is reference to damage to a garage door. The tenant says that on 30 March 2024 the tenant reported that the garage door had been derailed on one side and could not be opened or closed. The landlord says that the "most likely cause" of a derailment is when an object obstructs the path of the garage door and the force causes the door to derail. He says that he attended the site and completed an emergency repair. The cost of the repair was $1,000 and that a further repair was undertaken on a "non-urgency" basis by a garage door specialist on 3 April at a cost of $1,520.
4. On the same page of the Exhibit the landlord refers to the tenant reporting that the carpet in bedroom 4 was wet and mouldy following a severe storm event in Sydney. He says that as a result of a storm event on 5 April the carpet in bedroom 4 became wet and mouldy but that the tenant had ripped up the outer edge of the carpet preventing him from steam cleaning and salvaging it. He says an emergency repair was carried out by replacing the affected section with new carpet tiles and that the repair cost was $460. He also says, however, that due to the tenant's failure to report the storm damage in a timely manner full carpet replacement was required at $990.
5. The landlord refers to the oven not working and the tenant reporting that issue on 14 December 2024. He says that he attended the property and found the oven to be working and claims for his own expenses in attending.
6. The landlord was also questioned at the hearing by the tenant.
7. When giving evidence the landlord said that the fixed term of the initial tenancy ended on 22 November 2023 and thereafter the tenancy was a periodic one until May 2024 when a new proposed residential tenancy agreement was sent to the tenant's school; this proposed agreement being in respect of the period 22 May to 22 November 2024. He then says that one page of that proposed lease was "reissued", that being the page appearing at page 161 of Exhibit B.
8. He maintained when giving oral evidence that he was first informed of the roof leak issue on 17 February 2024 and attended to repair on 20 February 2024. He says that he replaced the carpet from the walk-in wardrobe of bedroom three on that occasion.
9. He denies that he was notified of any further water leaks after 20 February 2024. He says that when he was contacted by the tenants on 21 May 2024 they confined their complaint to the smell of mould. He said they did not contend that there was rainwater leaking into the premises.
10. The landlord denies there was any evidence of mould or water leaking at the time of the tenant vacating position in March 2025. He also says that the tenant did not challenge the outgoing condition report following that document being sent to the tenant between 22 to 25 March 2025.
11. Whilst being questioned by the tenant the landlord's attention was drawn to the signature appearing at page 157 of Exhibit B. The landlord denied the contention put to him by the tenant that the tenant's signature shown on that page was forged.
12. The landlord conceded that he had been paid rent up to 21 March 2025 following receipt of the tenant's notice to vacate. He further conceded in answer to a question by the tenant that he changed the end date of the proposed new lease from 2024 to 2025 and assumed the tenant had signed. He conceded that he had not received from the tenant a copy of the new lease signed by the tenant.

1. The first issue for determination is what - if any - residential tenancy agreement existed between the parties.
2. The tenant in closing submissions maintained that he had never signed the proposed new lease namely the lease proposed for the period May to November 2024.
3. The tenant put a serious allegation to the landlord of his (the tenant's) signature being forged on the new lease; a proposition that the landlord denied. However the landlord conceded that he had not received a copy of the new lease signed by the tenant and had assumed it had been signed. He also conceded that he changed the date of the proposed new lease so as to show the lease period ending in May 2025 rather than May 2024.
4. On the evidence as it is I am not satisfied that there came into existence a valid and enforceable residential tenancy agreement dated 8 May 2024.
5. I am satisfied that the lease in existence at the time of the tenant vacating possession in March 2025 was the RTA made on 8 May 2023 commencing at page 13 of Exhibit B. As there was no new agreement coming into existence in May 2024 the tenancy as at March 2025 had become (and had been since November 2023) a periodic tenancy.
6. The landlord bears the onus of proof on balance of probabilities that the tenant had ended the residential tenancy before the end of the fixed term of the agreement and is consequently liable to pay a break lease fee, namely the fee set out in clause 51 of the 8 May 2023 RTA. I accept the tenant's evidence of giving 30 days' notice of intention to end of the tenancy and, further, rent having been paid up to the date on which vacant possession was given namely 21 March 2025. The landlord concedes that rent was paid up to that date.
7. As the May 2023 RTA was not ended by the tenant before the end of the fixed term of that agreement the break fee provisions of clause 51 have no application and the landlord's claim of rent owing is rejected.
8. So far as the landlord's claim of the cost of repairing the garage door is concerned, that claim too, is rejected.
9. The landlord has not discharged the onus of proof resting on him to establish that the tenant has intentionally or negligently caused or permitted damage to the premises in breach of RTA clause 16.4.
10. There is a scarcity of evidence on the issue of the garage door. The tenant does not deal with the issue in his evidence. At best the landlord says in his statement that the tenant reported in March 2024 that the garage door had been derailed on one side. Absent any further evidence I am not satisfied that a derailment of a garage door on one side results from or has been caused by the tenant negligently or intentionally causing damage. Derailment can occur without being caused by the sustaining of damage. The landlord, at best, speculates as to how the derailment might have occurred.
11. So far as electrical repairs are concerned, again the landlord fails to discharge his onus of proof. In his statement he says that in January 2024 the ground floor circuit breaker was shorting and there was no power in the kitchen area. That, of itself, is not suggestive of negligent or intentional damage being sustained by the tenant. Although there is reference to an electrician attending the site there is no evidence as to the electrician's observations or findings.
12. The final item of repair relates to the carpet in bedroom 4. The landlord says that he was notified on 13 April 2024 by the tenant that the carpet in the bedroom was wet and mouldy following a severe storm event.
13. Again, the landlord's contention does not suggest negligent or intentional damage by the tenant. If anything, if part of the carpet became wet following a rainstorm one could only conclude that that has been caused by the roof of the premises leaking. That is not damage being caused by a tenant.
14. Similarly, there is no evidence adduced by the landlord of negligent or intentional damage being sustained to the oven resulting in the oven not working as reported by the tenant in December 2024. The landlord concedes that on attending and testing he found the oven to be working.
15. The landlord's claims for rent owing and for the cost of repairs fails and the bond is, accordingly, payable to the tenant.
16. So far as the tenant's Application is concerned there is, equally, a lack of persuasive evidence.
17. The landlord's obligations arising from the May 2023 RTA are to keep the premises in a reasonable state of repair and to provide premises that are fit for habitation.
18. Under section 44 of the RT Act the Tribunal can order that rent payable is excessive having regard to the reduction or withdrawal by the landlord of (relevantly) facilities. Rent abates under section 43 if - other than as a result of breach of an agreement - residential premises become (relevantly) partly uninhabitable.
19. The tenant has not discharged the onus of proof resting on him to establish that the premises have not been kept in a reasonable state of repair, or were partly uninhabitable or that there was a reduction in facilities. There is little evidence as to what occurred in February 2024. The best evidence is the text message at page 105 of Exhibit B which simply refers to the tenant enquiring of the landlord as to whether he would be attending "on Monday" to fix the leaking roof.
20. 17 February 2024 was a Saturday. The evidence suggests that the landlord attended on the following Tuesday. I am not satisfied that there is sufficiently persuasive evidence of the repairs to the roof undertaken by the landlord on 20 February 2024 other than being effective.
21. The landlord has, I find, acted reasonably in attending the premises and carrying out repairs.
22. Although there is reference to a further communication by the tenant to the landlord on 21 May 2024 that was limited to "mould smell". There is no evidence adduced by the tenant either of themselves or of an expert that the mould that they refer to in the 21 May 2024 text message was caused by, or arose from, a failure on the landlord's part to maintain the premises in a reasonable state of repair.
23. Mould can occur because of a lack of ventilation. The content of the outgoing inspection report supports the finding of no failure on the landlord's part to maintain the premises in a reasonable state of repair.
24. There has been, I find, no occasion when the premises have been partly uninhabitable.
25. By issue of the word "may" in subsection (1) of section 45 the Tribunal is left with a discretion as to whether to make an order determining if - and to what extent - rent abates under section 43(2). The evidence demonstrates that, at best, a section of carpet within the walk-in wardrobe of a bedroom was wet and needed replacement; replacement that occurred within 3 days of the landlord being notified. That, I find, does not render the premises even partly uninhabitable.
26. Further, if there has been no reduction or withdrawal by the landlord of any goods, services or facilities.
27. The tenant's Application fails accordingly.

(1) NSW Rental Bonds is to pay to the tenant (Sasha Pecipajkovski) from Rental Bond No. T845363-9 $6,600.

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.