13. As such it is the view of the Respondent that no claim for loss of amenity exists or has been made out by the applicant.

CHRONOLOGY OF CORRESPONDENCE IN RELATION TO MOULD

1. The first correspondence that has been filed that mentions mould was an email exchange on 5 March 2021. Ms Wilson asks the rental provider's agent whether she was aware of any flooding or mould issues. She states that she is sensitive to mould, her health suggests the presence of mould, and that she suspects that there may be some mould under the lino flooring. The agent responded that the last tenant had been there for some time and that she was not aware of any issues.
2. On 13 March 2021 Ms Wilson raises several issues, including asking about the installation of an air conditioner and stating that she had been moving her mattress downstairs because it was too hot. Again, asked if there had been any water damage that may have caused mould issues. The agent on 15 March 2021 again responded that she was unaware of any issues with leaks or mould and reiterated that the previous renter had been there with no issues. Ms Wilson further responded, 'I appreciate the information on the mould it was a question ask by the people testing'. It is unclear what she was referring to.

1. On 22 April 2021 a notice was sent regarding a routine inspection that was conducted on 28 April 2021 apparently finding no evidence of mould. On 15 May 2021. Ms Wilson sent an email expressing dissatisfaction with her dealings with her agent to the officer in effective control of the agency, Mr Back who appeared at these proceedings. On 18 May 2021, Mr Back offered to allow her to vacate the premises.
2. On 19 May 2021 Ms Wilson wrote to Mr Back explaining that when the other agents came, presumably for the routine inspection, she had aired out the house and had an oil diffuser on. Apparently, this was her explanation as to why the agents couldn't smell mould. She further says that her GP has requested a report and that if it was easy to move out she would. Mr Back responded that the previous tenants had no issues. They had moved out for work reasons. An email has also been filed dated 26 May 2021 in which Ms Wilson queries why The Mould Doctor has not been authorised to inspect the premises.

1. Based on the materials filed, it appears that there was no further correspondence until 1 October 2021 when Ms Wilson emailed to follow up on requests including the mould inspection and air conditioner. On 1 November 2021 the renter emailed a photo to the agency of what she claimed was 'black-spores mould'. The photo appears to show dark spots on an exterior window frame. On 26 November the renter served a non-urgent repair notice. Ms Wilson included in the reason for the notice: 'Remove mould, mould inspection as requested 5 months ago... and ...Rotten toilet cisterns both toilets.'

1. A document has been filed that appears to be an auto-response from a maintenance request dated 24 January 2022 that includes the below text:

Details*Mould on most windows and some walls and toilet cynsins need replacing *Toilet upstairs slanted and getting worst *Deck requires repairs *window cover required next to window next to front door. * fly wire door upstairs master bedroom * fill in grout behind sinks x 3 * Replace 20+ yr old vynal flooring as it could be toxix *Rotten pieces of wood downstairs doors.

1. On 24 February 2022 the renter emailed Mr Back complaining that she had not heard back from Ms Brett regarding her maintenance requests. Mr Back replied saying that Ms Brett was best placed to respond. Ms Brett responded:

Hi Sophie, If your maintenance requests are referring to the notice you issued on the 26/11/2021 both Stephen and I have responded to this on several occasions.

- At the last inspection that 2 members of our staff attended, there was no evidence of mould at the property and therefore the landlord will not pay for the cost of a mould inspection...

As it has been nearly 12 months since your last inspection. I will be issuing you with a routine inspection notice shortly. The inspection will be carried out sometime within the next 2 weeks. It will be a great opportunity to follow up/re assess any of the outstanding maintenance issues...

1. On 17 March 2022 notice of a routine inspection was sent to the renter together with a notice of entry. The inspection proceeded on 25 March 2022. On 29 March 2022 the renter emailed Ms Brett saying that she had not received an update on the 'action plan'.
2. On 5 April 2022 the renter issued a breach notice in relation to the repair issues.
3. Also on 5 April 2022, perhaps in response to the breach notice Ms Brett sent the renter the following email:

I have just had a telephone meeting with the owner and we have gone over the recent inspection report. He has agreed to the following

• The decking that is lifting will be repaired (this is scheduled to be done next week but I will get back to you with a more firm date once I know)
• Window furnishings are to be installed on the upstairs pitched window in the front room and the window beside the front door. Someone will contact you tomorrow to arrange a suitable time to measure.
• Re-grouting/silicon behind the kitchen sink and the bathroom vanities

At this stage the landlord does not agree to any of the other works requested.

1. On 12 April 2022 there was an email exchange regarding wet carpet. Ms Brett emailed the following to Ms Wilson:

Hi Sophie, You have sent through a request for 'Plumbing' works and attached some photos showing what appears to be wet carpet in the hallway downstairs off the laundry. Can you please provide further details...

Lauren, Im not sure where the leak is coming from. But I would guess as that is where the damp smell has been coming from it would be a pipe under that area. I sure a professional plumber will be able to sort it out. Find the source and rectify the issue.

1. Ms Wilson filed a report produced by Mold Solutions. The report was undated but noted a site attendance date of 11 May 2022.
2. Unfortunately, the report writer doesn't clearly establish that he has any qualification that would qualify him to write a mould report, other than noting an "IICRC Registration No:..." and listing a number of courses he has presumably undertaken, without any further explanation.
3. The bulk of the report is what appears to be cut and pasted general information. It otherwise contains numerous spelling errors and uses a casual tone in its commentary. Apparent findings appear to be made sparingly in between general commentary. Most of the findings that can be located and extracted from the report don't seem to back themselves up with a solid evidentiary basis that can be directly traced to their conclusion. For example, further explanation is required to explain why apparent thermal imaging indicates moisture in the walls. And how a meter with apparently unrelated numbers displayed indicates 80% moisture (in the walls and floor?).
4. While it is not expected that a few spelling errors and meandering monologues would invalidate a mould expert's report. The general form and commentary of the report doesn't appear to be of a professional standard. In the absence of clearly demonstrated expert credentials, the report in my view carries limited evidentiary weight. Directly documented observations such as photos that appear to show a small area of mould under the house, are of some assistance to the Tribunal and the report writer's commentary and reported observations are nonetheless noted.

1. A tax invoice from Beel Plumbing dated 21 April 2022, for a 'water inspection' commissioned by the rental provider has been filed with the Tribunal.
2. The invoice states:

To recommend a mould specialist to attend site to confirm where mould is coming from.

To conclude no water / dampness at time of inspection.

1. This is clearly intended as a report of the plumber's observations in relation to the property.
2. This brief document does seem to indicate that mould was observed. It, however, provides no guidance regarding the extent of the mould or its location except that mould was present in a doorway.

1. A 'Non-Urgent Repairs Report...' by Kenneth Spratt, Residential Tenancies Inspector from Consumer affairs Victoria was filed in evidence. The report was dated 21 April 2022 and recorded the inspection date as the same day.
2. The report stated that Ms Wilson had advised of concerns about particular issues but generally didn't make findings in relation to those issues. For example, in relation to the upstairs bathroom the report states;

The renter advised that she has concerns for the presence of mould throughout the property. At the time of the inspection, it was difficult to determine if mould was present as the renter has been attempting to clean the affected areas to ensure her own health and well being is not compromised. The suggested remedy being A suitably qualified industry professional to attend, investigate the matter further, provide a report to all parties concerned, then implement the required solution, therefore remedying the issue.

1. The report did make some direct observations. These included that:
   • - '...several insects/pests...' were on or around the window frames in the upstairs walk-in robe, the laundry, the kitchen and the dining room/living area;
   • - The cornice was rotting in the downstairs bathroom.
2. Comments were included at the bottom of the report as follows:

The renter demonstrated at the time of inspection that due to a lack of insulation she uses moisture absorbers at her own expense to keep her belongings from being damaged. The renter advised that her quiet enjoyment has been disturbed as a result of some of the above mentioned items, resulting in limited use to different parts of the property, such as the upstairs bedrooms, resulting in her using the living area as a bedroom.

1. A routine inspection report dated 29 April 2021 appears to show the premises in a clean and tidy condition. It shows photos only and therefore doesn't note any issues.
2. A routine inspection report dated 25 March 2022 shows photos of 'suspected mould' and notes that silicone is required 'behind the kitchen sink and bathroom vanity downstairs'.
3. An exit condition report has been submitted that is not signed or dated. It depicts the premises in a clean and tidy condition. It is noted in the report that some mould is appearing in some spots in the upstairs bathroom.

1. Ms Wilson filed a number of photos in evidence purporting to show mould in the premises.
2. Photos dated 20 May 2021 show the inside of a linen cupboard. The skirting looks unclean and there are several marks on the lower part of the wall. This could be mould, but it is not clear to me from viewing the photos that it is.
3. Photos dated 6 July 2021 show marks on the wood in a bathroom ceiling recess. This in my view appears to be evidence of a small amount of mould. Other photos attributed to the same date show photos of window frames and skirting boards with what is presumably purported to be mould, however it is difficult to discern whether the photos depict mould or simply dust and dirt that had gathered around the frames and skirting boards.
4. Photos dated 26 November 2021 include images of a toilet, bathroom fan, skirting near a shower and a window. None of these photos appear to show any significant mould.
5. Photos dated 22 March 2022 include a photo of a wall behind a toilet with some faint marks. I am unable to conclude from this photo that mould is depicted.
6. Photos dated 5 April 2022 show what appears to be mould inside a toilet cistern.
7. Photos dated 16 April 2022 show what could be some mould on an exterior window frame.
8. Photos dated 11 May 2022 appear to show a more significant level of mould on internal window frames overlooking a deck area and a grassed outdoor area. There are seven photos of windows. One doesn't appear to show any significant mould. Some appear to be photos of the same windows from different angles. I estimate that the photos show mould on two to three window frames.

1. Based on the evidence, I find that there was some mould in the premises. The question is whether the mould was such that it amounted to a breach of the rental provider's obligation to maintain the premises in good repair.
2. In my view the available evidence shows a minor level of mould in a bathroom ceiling recess. I accept that the mould was likely caused by the poor design as outlined in the Mold Solutions report and I accept Ms Wilson's submitted evidence that the fan wasn't adequate. It seems that mould developed despite Ms Wilson's mitigation steps such as showering with the window open. It is not entirely clear when the mould on the bathroom ceiling appeared, however the evidence shows it was present from at least 6 July 2021. I find that the combination of a bathroom ceiling that is likely to trap mould, and the porous wooden material in the ceiling were likely causes of the mould in the bathroom.
3. I accept, based on the evidence, that there was mould inside the toilet cisterns. Ms Wilson comments that the toilet cisterns are 'old' and 'rotten' in the entry condition report and photos of the cisterns appear to show them in a poor condition, with what appears to be a significant amount of mould. I find it is more likely than not, that there was mould present inside the toilet cisterns at entry. I find that the rental provider was put on notice at that point.
4. I find that there was mould on one exterior window frame from 16 April 2022.
5. I find there was significant mould on two or three internal window frames and a small patch of mould under the floorboards from 11 May 2022. Ms Wilson claims that her cleaning efforts at earlier routine inspections had lessened the appearance of mould. I accept Ms Wilson's evidence on this point. I find on balance, that there was at least some level of mould developing on the window frames well before 11 May 2022. I note that she was sufficiently concerned that she was seeking permission, that was apparently refused, to have a mould inspection carried out as early as 26 May 2021. It is not possible to pinpoint exactly when recurring mould at the premises became a problem, but 26 May 2021 is a reasonable starting point.
6. While the cause of the mould on the window frames was unable to be conclusively determined. It seems unlikely that the presence of mould on a window frame was due to any action or omission of the renter. I accept Ms Wilson's evidence that she regularly cleaned the window frames. The evidence generally shows that Ms Wilson kept the premises in a clean and tidy state. I would not expect that visible mould should ordinarily appear on the interior window frames in a well-maintained house. Given the location and recurrence of the mould on the window frames, and taking into account Ms Wilson's complaints that the window frames were rotten and attracting insects, the mould on the window frames is most likely related to the structure.

1. Ms Wilson claims there was dampness in the premises, particularly in the cupboard in bedroom 3. I have considered the available evidence including the oral evidence at the hearings, correspondence between the parties, the entry, exit and routine inspection reports, the reports of Mold Solutions and CAV, and the commentary on the Beal Plumbing invoice. The Beal Plumbing invoice states that no dampness was found, the CAV report doesn't mention dampness, and none of the property managers reports have indicated dampness. I again note that, in my view, the report of Mold Solutions lacks credibility as an expert report. I therefore find that there is insufficient evidence to prove on the balance of probabilities that there was dampness in the premises.
2. I find there is insufficient evidence of a water leak related to the photos of apparently wet carpet adjacent to the laundry door. No water was found on the carpet according to the invoice of Beal Plumbing who attended after a leak was reported. No evidence has been submitted that there was a leaking pipe as hypothesised by Ms Wilson in her correspondence to the agency. Photos of the wet carpet, appear to show that the dampness is to a large extent, immediately adjacent to the laundry doorway. In the absence of other evidence in relation to a leak, it would be open to a reasonable observer to conclude that the water had run onto the carpet through the open doorway.

1. As noted above, Ms Wilson was presented with an offer to vacate the premises without penalty. Her response to this was that the rental market was very tight at the time and to find another suitable premises to live in wasn't practical. A rental provider is not permitted to contract out of their obligations under section 68 of the Act.[9] Ms Wilson cannot be said to have failed to mitigate because she chose not to avail herself of this offer. In any case, it is not reasonable in my view for a rental provider to expect that a renter mitigates their loss due to a rental provider's breach, by uprooting themselves and moving out of the premises.
2. It is noted that the Ms Wilson didn't make any application to the Tribunal to have the issue remedied until April 2022. However as outlined above, she had raised her issues of concern consistently and made numerous requests throughout her tenancy. In my view Ms Wilson was actively trying to resolve the issues with the rental provider. Considering these efforts, it would be unfair in my view to conclude that not making an application to the Tribunal earlier amounts to a failure to mitigate her loss.

1. Ms Wilson claims that her mattress had to be replaced because it was infected by mould. She claims that the mattress cost her $12,000.00. Under the circumstances it would have been reasonable to expect that Ms Wilson might have produced photos showing mould on the mattress, or some other form of corroborating evidence to support her claim. Notwithstanding her assertion in oral evidence that she disposed of the mattress because it was riddled with mould, she has produced no evidence to support her claim other than the invoice for a new mattress that she purchased on 5 August 2021.
2. I find there is insufficient evidence to support Ms Wilson's claim for the mattress, and it is therefore dismissed.

1. Ms Wilson claims $518.00 for a 'special vacuum' and bags for her vacuum related to her claims in relation to mould in the premises. She has produced an invoice for a Miele Complete C3 Powerline SGDA3 vacuum in graphite, dated 16 September 2021. The vacuum cleaner cost $449.00. No invoices or receipts have been filed in evidence for the cost, presumably $69.00, of the vacuum bags. No evidence was produced that vacuum bags were consumed beyond normal domestic use. It is noted in their report, that the use of a HEPA vacuum is promoted as one of the tools that Mold Solutions would use as one of their tools when undertaking mould remediation work. It is also noted that the vacuum was purchased more than six months prior to that report, so the report could not be the basis of the purchase.
2. Mr Back in the defence on behalf of the rental provider submitted that the vacuum cleaner purchased was not a special vacuum. Noting that the Tribunal may inform itself as it sees fit,[10] I looked up the vacuum model online. Following that research, I am satisfied that the claimed item is a standard domestic vacuum cleaner.
3. Ms Wilson produced no evidence that she suffered a loss in relation to the purchase of the vacuum cleaner. There is no evidence that she had to purchase the vacuum cleaner because of the claimed mould issues, nor is there any evidence that she ceased to retain the item. Ms Wilson received an item of domestic usefulness of a value commensurate to the price she paid.
4. I find that Ms Wilson suffered no compensable loss in relation to her purchase of the vacuum cleaner and bags. Therefore that part of Ms Wilson's claim is dismissed.

Expenses incurred for mitigating the mould situation

1. Ms Wilson's claim under the ultimate title 'Expenses incurred for Mitigating the mould situation $2050.00' is a consolidation of her claims for:
   • - Moisture tubs @ 10 per month for 11 month @ $8 per tub = $880
   • - Charcoal bags @ $22 x 10 $220
   • - Air purifier $300
   • - Air dehumidifier $150
2. While it could be the case that Ms Wilson's mitigation efforts masked the need for such measures, based on the available evidence I am not satisfied that there is sufficient evidence that there was a sufficient level of mould or dampness in the premises to demonstrate a need for the above items.
3. Ms Wilson has produced no documentary evidence any of the above items had been purchased or used other than a single photo of a moisture absorber. With respect to the air purifier and dehumidifier given that they are non-consumable items that were presumably purchased for fair value, no evidence has been provided as to how the purchase of those items amounts to a compensable loss in any case.
4. For the reasons above the claim for 'Expenses incurred for mitigating the mould situation' is dismissed.

1. Ms Wilson repeatedly requested a mould inspection throughout the course of her tenancy. I find that there was a level of mould in the premises caused by or related to the structure. This falls within the definition of 'urgent repair' in the Act after 29 March 2021. While the extent of mould in the premises may not be enough to support a large compensation claim, the evidence of mould in the premises and Ms Wilson's concerns at least warranted further investigation by a professional. The Beal plumbing invoice comments confirm the presence of mould. The CAV report recommends, 'A suitably qualified industry professional to attend, investigate the matter further, provide a report to all parties concerned, then implement the required solution, therefore remedying this issue.'
2. I find that Ms Wilson's commissioning of an inspection was reasonable given her concerns that had been clearly communicated to the rental provider and the reports outlined above. Ms Wilson could not have foreseen that the report would not be of a high standard. Had the rental providers commissioned their own report, as repeatedly requested by Ms Wilson and recommended by CAV, they could have exercised their own judgment as to who they wished to complete an inspection.
3. I therefore find that Ms Wilson is entitled to be compensated for the cost of obtaining her report. I allow $350.00 for the cost of the Mold Solutions report.

1. As detailed above, Ms Wilson has refined her claim to matters relating to mould and damp to proceed as a breach of section 68 of the Act.
2. Ms Wilson acknowledged in oral evidence that the main reason that she was occupying the living areas downstairs rather than the bedrooms upstairs was because the rooms were too hot. I am not satisfied that this was due to mould. I am also not satisfied that there is sufficient evidence to show that she ceased occupying bedroom 3 due to mould and/or damp.
3. There is photographic evidence that there was at least a minor level of mould in the premises dating back to at least 6 July 2021, being mould in the bathroom. There is also evidence that there was mould developing on at least two window frames, to the extent that there appeared to be a significant level of mould by 11 May 2022 and that Ms Wilson had been seeking a mould inspection as early as 26 May 2021.
4. I am satisfied on the evidence that there was at least a minor amount of mould in the premises using 26 May 2021 as a reasonable starting point based on the evidence and the fact that Ms Wilson had put the rental provider on notice at that point. I am not convinced that the mould was at such a level that it rendered the premises not fit and suitable for habitation.
5. However, I find that the presence of mould was sufficient to find that there was a relatively minor breach of the duty to ensure the premises was provided and maintained in good repair. This breach resulted in a reduction in the amenity of the premises diminution of the value of the premises to Ms Wilson. I find a 1% of the rent for the period from 26 May 2021 until the termination date on 9 June 2022 is a reasonable to compensate Ms Wilson for the breach of section 68 of the Act.
6. It is noted in the entry condition report that both toilet cisterns appear 'rotten'. I accept on the evidence submitted, which also includes photographs, that the cisterns were in fact harbouring mould and therefore not in good repair from the commencement and for the duration of the tenancy. Toilets are an important, fundamental feature of a residential premises. I find 0.5% of the rent from 13 January 2021 until 9 June 2022 is a reasonable to compensate Ms Wilson for the failure to provide the premises in good repair.
7. It is to be noted for the purpose of calculating compensation that there was rental increase during the tenancy. The rent from 13 January 2021 until 12 January 2022 was $2,086.00 per calendar month. The daily rent for this period was $68.59[11] The rent was increased to $2,390.00 per calendar month from 13 January 2022 and remained at this level until the end of the tenancy. The daily rate for this period was $78.58.
8. For the mould in the toilet cisterns, I find compensation is payable on one year's rent to 12 January 2022 being $25,032.00 plus 148 days at $78.58 per day, being $11,629.84 for the period from 13 January 2022 until 9 June 2022. The total rent paid for this period was $36,661.84. The 0.5% allowed of the total rent paid is $183.30.
9. For the general mould on the window frames and bathroom I find compensation is payable on rent paid for 242 days at $68.59 per day from 26 May 2021 until 12 January 2022 being $16,598.78 plus 148 days at $78.58 per day, being $11,629.84 for the period from 13 January 2022 until 9 June 2022. The total rent paid for this period was $28,228.62. The 1% allowed, of the total rent paid is $282.29.
10. I allow $464.59 for breach of the duty to provide and maintain the premises in good repair.

1. VCAT has a discretion to order that an applicant be reimbursed for their application fees under section 115B of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) ('VCAT Act'). Section 115B(3) specifies:

In making an order under this section, other than in a proceeding to which section 115C or 115CA applies, the Tribunal must have regard to -

(a) the nature of, and issues involved in, the proceeding; and

(b) the conduct of the parties (whether occurring before or during the proceeding), including whether a party has caused unreasonable delay in the proceeding or has failed to comply with an order or direction of the Tribunal without reasonable excuse; and

(c) the result of the proceeding, if it has been reached.

1. Ms Wilson seeks that the rental provider re-imburse her VCAT application fees. Rather than outline her compensation claim in R2022/10352 as per the order dated 8 June 2022. She made a new application for compensation in R2022/22161 based on the same circumstances. The new application attracted an additional filing fee that would not have been incurred if Ms Wilson simply outlined her compensation claim in R2022/10352. It is not reasonable in the circumstances that the rental provider ought to pay the fee for both applications.
2. I have dismissed numerous items of claim, and it is to be noted that the quantum of Ms Wilson's claim is $19,461.50. Of these claims I have found the sums of $350.00 for reimbursement of cost of a mould inspection and $464.59 for breach of the duty to maintain the premises in good repair. Based on these metrics Ms Wilson's claim has been largely unsuccessful. However, I am satisfied that Ms Wilson had made numerous and persistent attempts to resolve the matters that were the subject of the successful parts of her claim with the rental provider. I am satisfied that, had she not commenced these proceedings which incurred application fees, she would not have obtained any relief in relation to the claims. Therefore, having regard to the matters in section 115B(3) of the VCAT Act, it is appropriate in the circumstances, that I order the reimbursement of the application fee that Ms Wilson paid for proceeding R2022/22161.
3. I allow $67.40 for Ms Wilson's claim for reimbursement of VCAT application fees.

1. I allow:
   • - $350.00 for reimbursement of the cost of the mould inspection commissioned by Ms Wilson.
   • - $464.59 for the breach of duty to provide and maintain the premises in good repair, related to mould in the premises.
   • - $67.40 for reimbursement of VCAT application fees.
   • - The total of the allowed claims is $881.99.
   • - All other claims are dismissed.

[1] All quotes reproduced in this document are as-written; It is to be noted that there was a dispute early in the tenancy regarding the rental provider's refusal to comply with Ms Wilson's request for a split system air conditioner to be installed in the premises. There was no obligation under the Act to provide an air conditioner. Ms Wilson had claimed in her correspondence with the rental provider's agent that a representation had been made by the agent prior to entering into the rental agreement that an air conditioner had been provided. It seems that this may have been a source of discontent throughout the tenancy, however the refusal to provide an air conditioner does not form part of the renter's claim.

[2] See the transitional provisions in sch. 1 cl 16 of the Act.

[3] At the time that the lease agreement commenced section 67 of the Act used the word landlord rather than residential rental provider. The amendments that commenced on 29 March 2021 altered the section to substitute the words residential rental provider for the word landlord. The section has remained otherwise identical. The change was in relation to terminology only and had no bearing upon the practical operation of the section.

[4] Blatt v Black Dog Ashgrove (Residential Tenancies) [2023] VCAT 1060.

[5] It is noted that sections 67 and 68 of the Act are not included in the transitional provisions in sch. 1 cl 16 and therefore apply to this tenancy from the date of their commencement.

[6] And only included within the definition of 'urgent repairs' in the Act after 29 March 2021.

[7] The second limb is only applicable after 29 March 2021.

[8] Noting as discussed, that section 65A does not apply to this tenancy.

[9] See Shields v Deliopoulos [2016] VSC 500 at 41.

[11] I have rounded the daily rents to the nearest cent.