Waller v Pacorp Holdings Pty Ltd

NCAT Consumer and Commercial|2016-12-06

APPLICATION

The initial application in this matter RT 16/40473 was filed on 4 September 2016 and that application was dismissed on 21 September 2016 as the applicant failed to attend the hearing. On 31 October 2016 the application was reinstated (RT 16/43166) and the earlier order dismissing the previous application was set aside. The initial application was reinstated as matter RT 16/45733 and the name of the respondent was amended.
The reinstated application claimed compensation in the sum of $5,000.00 and a payment of $3,200.00 together with a reduction of rent and an order for repairs to be carried out. That claim was amended when particulars of the applicant's claim were subsequently provided.
On 31 October 2016 orders were made for the applicants to file and serve all documents including witness statements by 14 November 2016 and for the respondent to file all documents including witness statements by 28 November 2016. On 14 November 2016 the applicant sought an extension of time to enable a mould evaluation report to be prepared. The timetable was extended to 2 December 2016 and the hearing date was confirmed for 6 December 2016.
The matter was heard for three hours on 6 December but the parties had only partially completed their evidence and submissions. The matter was fixed for a further three hour period and was listed again on 20 December 2016 when evidence and submissions were concluded and the decision was reserved.

RESPONDENT'S SUBMISSIONS

Material provided on behalf of the respondent, through its agent, L J Hooker of Dee Why included emails and text messages together with a rent ledger and an incoming condition report. A problem with the toilet cistern was apparently addressed with a maintenance order on 9 September 2016 and a document from a plumber indicates that the repairs to the toilet were carried out. Material provided shows that a request to investigate the electricity charge problem was referred to an electrician on 12 August 2014 where it was noted that the electricity bill had doubled since the last bill cycle. The thermostat on the hot water service was turned to a lower temperature, the wiring was checked but otherwise no investigations were taken.
The respondent's agent provided a timeline of events concerning the question of mould and it was noted that she first advised of a problem with mould in August 2015 and she was advised to attend to the mould issue by ventilating the unit properly and purchasing products such as clove oil. In September 2015 she requested that ceilings be painted due to potential mould and although quotes were arranged the agent indicated that they were awaiting the evidence that Ms Waller had thoroughly cleaned the walls with clove oil and they did not have evidence to establish this.
In April 2016 "Hire a Hubby" was requested to attend to remove nails from the windows to allow full ventilation and to quote for repainting and mould proofing the property as well as removing blinds. The blinds were removed but further work was not attended to as the tenant has not clarified that clove oil was used to clean down the property.
When the parties attended the Tribunal on 31 October 2016 the timeline records that the Tribunal advised that the bolts must be removed from the windows to ensure adequate ventilation. It was claimed that in November 2016 a tradesman had attended to remove the bolts but apparently he had done so without appointment and he was not permitted to enter the property by the tenant. The landlord's agent claimed that the problem had escalated due to Ms Waller not following the instructions to clean the walls with clove oil nor send images of personal items that had been damaged. It is noted that painting has never been done to the present date, apparently on the basis that the tenant had failed to fulfil her "obligation" to clean the mould down with clove oil.
A number of emails have been included in the material provided by the respondent and these emails have also been taken into account for the purposes of assessing the dispute between the parties. It is significant to note that a quotation from "Hire a Hubby" Dee Why, provided on 26 April 2016 included painting and cleaning of mould spores in all rooms as well as applying a stain blocker undercoat. The cost of that work, according to the quote, was $2,409.00 and it is difficult to understand why that quote was not taken up but rather was held over on the basis of some claim undertaking by the tenant.
A further maintenance order was issued on 17 November 2016 to Cross Roofing Guttering. That quotation required inspection of the roof cavity to advise of leaks and to rectify if necessary as well as cleaning the wall gutters and sanding back and mould proof painting of eves. No response to that quote has been provided although it is noted that an earlier quote dated 28 April 2016 included similar matters as well as the installation of five whirly birds to prevent mildew and allow for proper ventilation. That quote was for a total sum of $5,753.00. It was never taken up.
A further maintenance order was issued to Benny's Roofing to seal and fix the roof area. That maintenance order was issued on 17 November 2016 after directions had apparently been made by the Tribunal.
Details of rental increases on the property were attached along with a document described as rental comparison report dated 1 December 2016. That comparison report simply noted rental properties in the Cremorne area and the relevant rentals being sought for those properties. There is no detail available to indicate those properties which would be comparable to the subject property as compared to those which would not. The summary went on to detail the lowest rent as being $389.00 with the highest rent as $590.00 with a median or average rent out of the 14 properties of $505.00.
It was noted that the tenant had received a termination notice due to the owner wishing to renovate and that she had been provided with a 90 day notice and that she was required to hand over all keys on 6 January 2017. A letter to the tenant dated 23 September 2016 referred to the issue of that notice which it claimed was "delivered to your door yesterday morning at 11.29am". It is appropriate to note the delivery to the door of the property is not an effective service of a notice of termination but this observation is made in the context that there is no claim for termination for a termination order before the Tribunal at the present time. The photographs attached to the respondent's documentation appear to clearly establish that the notice was merely left at the door which is not effective service for the purposes of s 222 of the Act.

DECISION

Having considered the evidentiary material and submissions provided by both parties in this matter, it is necessary for the Tribunal to determine whether any compensation is payable by the respondent to the applicant in respect of three specific claims which remain to be determined, namely:- 1. refund of overpaid electricity charges. 2. compensation in respect of a reduction of rent for loss of services and facilities where the property is affected by mould, inadequate ventilation arising from lack of proper window locks. 3. compensation for goods damaged as a result of mould.
Although the applicant tenant has claimed that the rent increase to become effective from 30 September 2016 is excessive having regard to market values, it is noted that the applicant tenant has provided no evidence of comparable market values to support her contention. This aspect of her claim must be dismissed for absence of appropriate evidence as required under s 44(5) of the Residential Tenancies Act 2010. It is to be noted that although the respondent landlord provides some information addressing that aspect of the claim the information provided by the landlord was insufficient to enable the Tribunal to determine whether any of the units nominated by it could be regarded as truly comparable with the subject premises. As the tenant bears the onus, that part of the tenant's application must fail.

Refund of Electricity charges

It is clear that the applicant has resided in the subject premises since 2005 and it would appear that in 2014 she noted a substantial increase in electricity charges and the usage appears to have increased from a range between 3.6 and 5.8 kilowatt hours per day to a range between 15.2 and 20.2 kilowatt hours per day for the period between April 2014 and October 2015.
A review summary from the Energy and Water Ombudsman dated 11 March 2016 noted that an electrician advised he had attended the property occupied by the applicant and in about January 2014 had changed cabling to the switchboards incorrectly. A copy of the electrician's report was requested from the property manager but that request was denied.
The Energy and Water Ombudsman resulted in a credit of $1,200.00 being refunded to the applicant's account to resolve the complaint to the ombudsman. Evidence which was provided by the applicant to the Tribunal and not disputed by the respondent indicates that during the 2014 and 2015 years total charges for electricity amounted to $3,521.38 yet the applicant had estimated her charges to be $1,173.79. She also claimed that the goodwill payment received from Energy Australia amounted in total to $1,031.99.
The estimate provided by the applicant seemed to be less than the annual charges for the 2013/14 period or the 2016 period and it is appropriate to increase the estimate to at least the sum of the 2013/14 and 2016 periods which total $1,320.38. The overpaid amount is therefore a sum of $2,201.00 and it is claimed that a goodwill payment from Energy Australia was received in a claimed sum of $1,031.99 although the Energy Australia report suggests that it was $1,200.00.
Accepting that the goodwill donation was $1,200.00 the overpaid amount is a sum of $1,001.00.

Reduction of facilities through mould

The tenant has occupied the property since 2005 and it has only been in recent times that mould has caused a problem.
Following problems with an intruder on the balcony in 2014 Ms Waller realised that locks on her windows had corroded and were therefore not operating correctly.
On 7 April 2014 the managing agents for the property contacted a maintenance service seeking the installation of locks to the kitchen and bathroom windows or the securing of those windows with a length of dowel so that the windows could be opened to secure a point for ventilation but otherwise prevent external access to the unit. The invoice from Marks Maintenance Services dated 9 April 2014 suggests that the sash windows and sliding windows were secured creating a 100mm gap for ventilation. It was after this work was undertaken that significant mould problems were noted by the applicant and she reported these problems to the landlord's agent in August 2015. In response to that notification the landlord's agent advised the tenant that the problem may be due to the lack of ventilation and heaters being left on causing condensation and eventually causing mould to grow. The agent suggested that the tenant should purchase a mould killing product from a chemist using a spray bottle should apply the product then remove it after with a microfiber cloth after letting it set for about 15 minutes.
The agent then, in response to a further email expressed concern that the windows had been nailed shut and that one of their tradesman had done that but he again suggested that the tenant should try clove oil and a further inspection could be arranged in October. It is apparent that the landlord's agent expressed a total reluctance to address the question of the mould problem at all and rather required the tenant to do so instead.
Section 52 of the Residential Tenancies Act 2010 requires a landlord to provide the residential premises in a reasonable state of cleanliness and fit for habitation by the tenant.
The expression "fit for habitation" is not defined in the Residential Tenancies Act but as noted by the Tribunal in Bannister v Cheung [2014] NSWCAT CD 105, the test of whether residential premises are fit for habitation is objective and the premises may not be fit for habitation even where the defect is latent or the landlord is unaware of the defect. The obligation to provide premises fit for habitation is mandatory and is not expressed to be contingent on reasonable steps or to be dependent on the landlord being at fault or having control over the event in the circumstances.
Section 63 of the Act imposes an obligation on the landlord to provide and maintain the residential premises in a reasonable state of repair having regard to the age, rent payable and prospective life of the premises. Notice to the landlord of the existence of a defect is required where the defect arises in the course of the lease as no absolute duty arises (see Northern Sandblasting Pty Ltd v Harris [1997] 188 CLR 313 at 370) where Gummow J said:- "in general there is no breach of an express covenant by a landlord to keep the demise premises in repair unless two criteria have been met. First the landlord must have information as to the defect such as would put a reasonable landlord on enquiry as to whether works or repair are needed and secondly, thereafter the landlord must have failed to carry out the necessary works with reasonable expedition."
Section 44(3) of the Act enables a tenant to make an application for a reduction in rent where goods or services or facilities which have been provided in the premises have been reduced or withdrawn. Section 187 of the Act entitles a tenant to claim compensation for breach of the obligations under the Act or under the Residential Tenancy Agreement.
The evidence establishes that the tenant reported the mould problems which were thought to be caused by inadequate ventilation. Although the landlord obtained quotes for cleaning and painting work to rectify the problem and also sought to arrange for the ventilation to be improved either by the installation of whirly birds or by installation of the window locks which had been requested, it is clear nothing has been done from the date of the original complaint to the present time.
The evidence from the tenant indicates the premises is a one bedroom property. The evidence further establishes that there was a strong smell of mould evident in the property on various occasions when tradespersons attended to provide quotes or carry out inspections.
It is apparent that the position deteriorated to the point where the applicant advised the landlord's agent that she was sleeping on the lounge as she was unable to remain in the bedroom for health reasons. Photographic evidence establishes that furniture and personal belongings were damaged and that clothing, mattresses and pillows were damaged to the point where they could be no longer used. There is clear evidence that the blinds were also deteriorating and affected by mould. The tenant made a number of requests to have these blinds removed but this was not done until sometime in late April 2016.
Allowing a reasonable time for the landlord to respond to the initial request to rectify the mould problem and have the mould properly cleaned and the ceilings and walls painted to prevent occurrence, it can be said that the tenant was, for all practical purposes, without the benefit of her only bedroom from about October 2015 to the date of the present hearing.
The evidence from the respondent does not dispute this claim but simply points to the number of requests for work to be done which were either ignored or not taken up by the agent because the costs were not regarded as acceptable.
It is, in my view, appropriate to allow a rent reduction of 25% (having regard to the fact that this was the only bedroom in the unit) for a total period of 64 weeks with that reduction being applied to the rent which was initially $350.00 per week up to 29 January 2016 and thereafter $370.00 per week up until 29 September 2016 when it was again increased to $430.00. Allowing 17 weeks at $87.50 per week followed by 35 weeks at $92.50 per week and a further 12 weeks at $107.50 per week to represent the various rental rates. A total sum of $6,015.00 is payable by the landlord to the tenant as a rent reduction for loss of services and facilities.

Compensation for mould damage

The applicant has claimed that some 27 items were either damaged or destroyed as a result of exposure to mould. Her evidence of the items and their value is limited. Costings and photographic details of these items were provided in accordance with the Tribunal directions but there was no evidence of the age of the various items or the date when they were purchased or the cost of purchase.
Excluding costs for the application and medical costs, the list of goods which were damaged or rendered incapable of further use totalled sum $10.909.50. There were several items in the list which were not identified by photographs and the value of these goods was a total sum of $697.00.
The evidence discloses that several pictures and prints had the frames and the pictures damaged by mould and the applicant produced a quote from Master Framing of Mosman dated 9 November 2016 to rectify this problem. The quote for a sum of $1,380.00 should be allowed as part of the claim.
The applicant gave evidence that after the blinds which were rotting and mouldy, had been removed from the windows, she applied to the landlord's agent to have either blinds or curtains installed to give her privacy. This request was refused, so curtains were replaced by her at a cost of $108.00 and this sum should also be allowed.
In relation to the balance of the items which included mattresses, pillows, quilts, mattress protectors and clothing and accessories including boots, shoes and handbags along with coats and a travel bag. The nominated replacement cost of these goods was $10,212.50 but in the absence of further information it is impossible to accurately assess the loss. The Tribunal does however have an obligation to endeavour to determine the loss on the available information, particularly where it is clear that loss and damage has been caused as is evident in the photographs provided by the applicant.
In all the circumstances it is appropriate to allow only 30% of the total claim. That allowance takes into account the prospect that some goods may have been able to be rejuvenated and that some goods were significantly reduced in value by reason of their age. Many of the goods in the photographs do not appear to be unduly aged or capable of re-use and the applicant is certainly entitled to recompense for losses suffered in circumstances. The ongoing mould problems appear to have been perpetuated by the failure of the landlord to recognise the most likely cause of the mould and take steps to clean the unit and prevent a recurrence with the mould as well as a failure to allow the unit to be further ventilated which would probably have eliminated the problem. Taking 30% of the overall stated value of the goods gives rise to a sum of $3,063.75. When this sum is added to the claim for the repair to the pictures and frames and the cost of curtains I find that a sum of $4,551.71 is an appropriate amount to compensate the applicant for damage to goods and sustained as a result of mould.
The total compensation payable by the respondent to the applicant is therefore a sum of $11,567.25 and that sum is to be paid within 30 days of the date of these orders.
In relation to the question of costs it is noted that s 60 of the Civil and Administrative Tribunal Act requires each party to pay their own costs unless special circumstances apply. In the present case the applicant would not be entitled to general costs but it is noted that a sum of $999.00 was necessarily incurred for a professional mould report to be provided to the Tribunal. A request was made for the respondent to assist in the provision of that report but that request was declined.
The report dated 11 November 2016 and prepared by Mr David Singh determined that elevated and high mould levels had been detected in the property indicative of recent active mould growth constituting a potential health hazard to the occupants of the property. Evidence of mould was noted in the lounge, kitchen, main bedroom, hallway and bathroom of the property and it was therefore affecting all rooms in the unit.
Mr Singh concluded that apartments in general are known not to have ample ventilation to enable continuous circulation of moist/humid air to prevent accumulation of moisture and dampness that leads to mould growth. He proposed a program at a cost of $2,480.00 plus GST for mould remediation of the property together with the cost of supplying a 30 litre per day dehumidifier.
The report clearly establishes that the mould problems encountered by the applicant arose as a result of breaches of the landlord's obligations under s 52 and 63 of the Act. The need for the report and the landlord's refusal to contribute to the cost of such a report in my view constitutes special circumstances which enable me to order the respondent to pay the sum of $999.00 as costs or disbursements for the expert report required in the proceedings. The respondent is accordingly also ordered to pay the applicant costs in a sum of $999.00 within 30 days of the date of these orders. J A Ringrose General Member Civil and Administrative Tribunal of New South Wales 24 January 2017 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: 23 February 2017

At a glance

Court

Decision date

Source

Judgment (7 paragraphs)

Parties

Cited By (1)