Yassine v Saeed; Saeed v Yassine

NCAT Consumer and Commercial|2022-03-14|Before: Northern Sandblasting P, Sunray Investments P

Introduction

There are three applications before the Tribunal in these proceedings.
The first application in time is RT 21/39349. By this application the tenant originally applied for an order pursuant to s 44(1)(b) of the Residential Tenancies Act 2010 (RT Act) that rent was excessive due to the reduction or withdrawal, by the landlord, of goods, services and facilities provided with the residential premises. The tenant also applied for an order pursuant to s 65(1)(a) of the Act that would require the landlord to carry out repairs to the roof of the premises. This application was made to the Tribunal on 29 January 2021 (the tenant's first application)
The second application in time is RT 21/39348. By this application the tenant originally applied for orders pursuant to s 44(1)(a) of the Act that a rent increase that had been served on him by the landlord's agent by notice dated 7 May 2021 was excessive. He also applied for an additional order pursuant to s 44(1)(b) of the Act that rent was excessive having regard to the reduction or withdrawal, by the landlord, of goods, services and facilities provided with the residential premises, and an order pursuant to s 175 of the Act that would direct Rental Bond Services to pay him the whole of his rental bond. This application was made to the Tribunal on 7 June 2021 (the tenant's second application).
The third application in time is RT 21/41277. By this application the landlord applies for orders pursuant to s 51, 187(1)(d) and 190 of the RT Act that would require the tenant to pay him compensation for damage and loss he contends he suffered due to the tenant's breach of his end-of-tenancy obligations to leave the premises reasonably clean, and the lawns in a similar condition to the condition they were in at the start of the tenancy. The landlord also applies for an order pursuant to ss 39 and 187(1)(c) that would require the tenant to pay him water usage charges incurred up to the end of the tenancy. This application was made to the Tribunal on 1 October 2021 (the landlord's application).

Procedural history

Applications RT 21/39349 and RT 21/39348 are reconstituted applications (from RT 21/04181 and RT 21/24762) which were remitted by the Appeal Panel of the Tribunal on 15 September 2021 for redetermination following the tenant's successful appeal against decisions made in these applications on 21 June 2021. The Orders of the Appeal Panel remitting the applications are: The Appeal is allowed The appellant's proceedings RT 21/04181 and RT 21 24762 are remitted to the Consumer and Commercial Division, differently constituted, for hearing of the appellant's claims in relation to excessive rent and compensation on the basis of the evidence that was provided to the Tribunal in the original proceedings. The respondent's liability (if any) and the appropriate remedy if liability is established are to be considered in the remitted proceedings.
The tenant's remitted applications and the landlord's application were first listed before the Tribunal, differently constituted, on 14 October 2021 for Directions. In accordance with the Tribunal's usual practice where both parties are present at the first listing of the Tribunal attempted to assist the parties to resolve the dispute cooperatively without the need for further hearing. Those efforts were not successful. As a consequence, the three applications were set down for hearing together at a Special Fixture. In doing so the Tribunal made the following directions (relevantly to the determination of this dispute): RT 21/41277 - LANDLORD'S CLAIM 2. This matter is a claim by the landlord for end of tenancy costs including cleaning, gardening, water usage, damage to the kitchen bench top and damage to the door and floor of the main bedroom. 3. The landlord has leave to amend the claim in RT 21/41277 by 04-Nov-2021 by sending a copy of the amended claim to the Divisional Registrar and tenant, and including a list of each item claimed, specifying the monetary amount of each claim. … [directions were then given for the filing and exchange of evidence in relation to the landlord's application] RT 21/39349 and RT 21/39348 - TENANT'S CLAIMS REMITTED FROM APPEAL PANEL … 8. The only issues to be determined at the hearing of the remitted matters are the tenant's claims for compensation/rent reduction - both liability and the appropriate remedy are to be considered in the proceedings. 9. The remitted proceedings are to be determined on the basis of the evidence that was provided to the Tribunal in the original proceedings. 10. The Tribunal notes that the tenant relies on two black folders of documents lodged in RT 21/04181 and RT 21/24762 on 7 June 2021 and 21 June 2021 respectively. The landlord relies upon a brown folder of documents lodged in RT 21/04181 on 27 May 2021. 11. However, the tenant has leave to lodge limited additional evidence (in the form of a witness statement or statutory declaration) in relation to whether repairs were done prior to the termination of the tenancy. … …
I set out the Appeal Panel's terms of remittal and the Tribunal's directions of 14 October 2021 in some detail because it was contended by the tenant at the hearing that he had filed substantial evidence supporting his compensation claims in the Appeal proceedings which the Appeal Panel required me to consider. I do not have the documents relied upon by the parties in the Appeal proceedings before me. But in any event, it is clear that in the remitted proceedings the parties are limited to the evidence they had filed at first instance, with the single exception that the tenant was given leave to file an additional statement in relation to whether repairs were done prior to the termination of the tenancy.
It is also important to note from the terms of the remittal that I am to re-determine the landlord's liability in respect of the tenant's claims, as well as any remedy that may be available to the tenant in the event that liability is established. I make this point because the tenant appeared to approach the rehearing of his claims on the basis that I am bound by a finding made by the Member who first determined them, which is (relevantly) found in paragraph 2 of the reasons issued on 21 June 2021: 2. Consideration of all of the evidence and submissions made establishes a finding that the subject premises have been adversely affected by mould which is the result of moisture within the dwelling due to structural issues as opposed to storage of boxes or a failure to open windows by the tenant as is submitted on behalf of the landlord.
The terms of remittal make it clear that I am not bound by that finding and must reconsider the issue on the basis of the evidence that the parties have filed. I note that other than what is stated in paragraph 2, I am unable to know from the reasons given by the Member how he reached the conclusion he did.

The tenant's claims as they stand at the hearing

As a consequence of developments since the tenant's applications were made there are now two orders sought: 1. An order pursuant to s 44(1)(b) of the Act that rent was excessive by 50% of the weekly rent (which was $520.00 per week) for the period 27 March 2020 to 4 February 2021. 2. The tenant explains this date range at page 49 of his bundle as the period "from the time of repairs raised, to the issue of the termination notice being the 4th of February 2021." 3. An order pursuant to s 63, 187(1)(d) and 190 of the Act that will require the landlord to pay him $6,280.43 in compensation for damage and loss he intends he incurred due to the landlord's breach of his obligation to maintain the premises in a reasonable state of repair. 4. The compensation claim is comprised of the following elements: 5. (i) cost of an electrician's report: $150.00 6. (ii) cost of a roof report: $275.00 7. (iii) cost of a mould report: $283.00 8. (iv) stationary and printing costs: $131.43 9. (v) shoes $195.00 10. (vi) quilt covers $77.00 11. (vii) non-economic loss (being distress 12. and disappointment: $5,000.00
I note that items (i) to (iv) appear to relate to costs associated with the conduct of these proceedings, and are thus in reality claims for costs in this amount.

The landlord's amended claim

By a document filed with the Tribunal on 9 November 2021 the landlord amended his application so as to narrow it to the following three claims which total $951.40: 1. compensation for end-of-tenancy cleaning costs in the amount of $310.00; 2. compensation for lawn maintenance in the amount of $350.00 3. water usage for the period 11 December 2020 to 5 July 2021 in the amount of $291.40.

Evidence and hearing

I have marked the tenant's two black folders filed in his original proceedings Exhibit A1 and A2. On 2 February 2022 the tenant filed a statutory declaration in support of his own applications and submissions in response to the landlord's application. Insofar as this document contains evidence I have marked it Exhibit A3. I have marked the landlord's brown folder filed in the tenant's original proceedings Exhibit R1. The landlord has filed bundles of documents in support of his application on 5 October 2021 and 9 November 2021. These bundles were marked Exhibits R2 and R3 respectively.
The hearing was conducted in a VMR in accordance with the Tribunal's COVID-19 Revised Hearing Procedure. The tenant attended the hearing in person. The landlord was represented at the hearing by Mr Bruno Silva who is his Property Manager. Both Mr Yassine and Mr Silva gave oral evidence under a solemn promise to tell the truth. The parties had the opportunity to present their respective cases, to ask each other questions, and to make final submissions to the Tribunal.

Material facts

The dispute arises from a residential tenancy agreement that was made between the parties on 30 September 2019 in respect of premises at Lakemba. It was initially a fixed term agreement of 52 weeks duration for the period 30 September 2019 to 27 September 2019 (sic, 2020). After the lapse of the fixed term the tenancy continued on a periodic basis.
The agreement is in standard form. Relevantly, it includes the following standard form clauses: 10. The tenant agrees to pay: … 10.5 water usage charges, if the landlord has installed water efficiency measures referred to in clause 11 and the residential premises: 10.5.1 are separately metred, … … 16. The tenant agrees: 16.1 to keep the residential premises reasonably clean … 17. The tenant agrees, when this agreement ends and before giving vacant possession of the premises to the landlord: … 17.2 To leave the premises as nearly as possible in the same condition, fair wear and tear excepted, as at the commencement of the tenancy, and 17.3 to leave the premises reasonably clean, having regard to their condition at the commencement of the tenancy, .. … 18. The landlord agrees: … 18.3 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 agreement also incorporates, in clause 48, a special condition concerning mould: MOULD CONTROL Clause 48 The tenant is to control mould, mildew and dampness by adopting a regular cleaning routine, ensure adequate ventilation, operate exhaust fans where fitted and lifestyle practices that reduce the accumulation of condensation.
The rent payable under the agreement at the start of the tenancy was $520.00 per week. By notice dated 7 May 2021 the landlord increased the rent payable to $570.00 per week with effect from 12 July 2021. The tenant originally sought to challenge this increase on the basis that it was excessive, but the tenancy ended before the rent increase came into effect.
At the start of the tenancy, the tenant provided the landlord with a rental bond in the amount of $2080.00 which was deposited with Rental Bond Services. It was paid to the tenant in full on 13 August 2021, apparently as a result of the landlord's failure to appear in related proceedings where the rental bond was in issue.
The residential premises is a free standing house with a front and back yard. It has three bedrooms, one bathroom, and family/living room, kitchen and laundry and split system air conditioning. The agreement provided that a maximum of 3 occupants could ordinarily live at the premises. The tenant lived at the premises with his wife and children.
On or about 27 September 2019 the landlord's agent prepared a Condition Report for the premises which was provided to the tenant for comment on or about the date the residential tenancy agreement was signed. The report incorporates 393 date and time stamped colour photographs of various views of the premises. The landlord's version of the report records that the premises was clean, undamaged and in working order throughout at that time.
The tenant returned an annotated version of the Condition Report to the landlord's agent on 3 October 2019. This report contains a number of dissenting comments. Relevantly to the issues to be determined in these proceedings are the following dissenting comments concerning the state of cleanliness of the premises: Entry: blinds/curtains all extremely dirty Family/Living room: windows dirty; blinds/curtains extremely dirty with mouldy (sic) Bedroom 1: windows dirty; blinds/curtains extremely dirty and mouldy Bedroom 2: windows dirty; blinds/curtains very dirty; floor/ floor coverings …dirty; wardrobes/drawers/shelves tracks dirty Bedroom 3: windows dirty; blinds curtains extremely dirty; wardrobe/ drawers/shelves dirty, tracks dirty Bathroom: doors/walls/ceiling very mould tiles; windows dirty; fans/light fittings extremely dirty, drain blocked with hair and dirt; wash basin/vanity … dirty Kitchen: doors/walls/ceiling …dirty; blinds/curtains extremely dirty and mouldy; floor/floor coverings …dirty; cupboards/drawers dirty; bench tops/tiling …benches dirty with marks; dishwasher dirty Laundry: wash tubs dirty and damaged
The tenant has not submitted any photographic evidence that depicts the state of uncleanliness he complains about in his dissenting comments.
In respect of the condition of the premises' "grounds/garden" the tenant made no dissenting comment from the condition stated by the landlord, which is that they were clean, undamaged and in working order.
On 17 October 2019 the tenant instituted proceedings against the landlord (RT 19/46724) in relation to the state of disrepair in which he received the premises, applying for orders for repair as well as a rent reduction. This application came before the Tribunal on 25 October 2019. The dispute was resolved on the basis of two consent orders. The first of those orders reduced the rent payable for the premises by $20.00 for 3 weeks. The second required the landlord to carry out repairs to the back sliding doors, bedroom flyscreens, air conditioning exhaust, oven, side fence and kitchen blinds, by 30 November 2019. The landlord also agreed to reimburse the tenant to cost of having three front door keys. I note that there is no reference in these orders to water ingress, mould, or any faulty electrical circuit.
In the course of the tenancy the landlord conducted three routine inspections, on 30 March 2020, 9 December 2020 and 26 April 2021. These routine inspection reports, which incorporate various time and date stamped photographs of the condition of the premises at those times, are in evidence. Relevantly to the issues in dispute the photographs taken on 9 December 2020 and 26 April 2021 depict the premises as generally untidy and cluttered. Bedrooms 1 and 2 have a large quantity of household items and boxes stacked randomly on top of each other almost up to ceiling height.
At or around the 30 March 2020 inspection the tenant complained to the landlord's agent about a water leak in the kitchen ceiling which the agent agreed to investigate. Shortly afterwards, a handyman/builder contractor attended the premises to check the ceiling and the roof above it. No broken tiles were found. The contractor re-sealed the range hood pipe roof exit.
On 16 June 2020 the tenant emailed the landlord's agent to complain that the 'electrical problems in the property are still ongoing' and that the agent had failed to send an electrician to the property to investigate as he had promised. In this email the tenant also states that there is 'severe mould building up in the ceilings' 'showing there are still leaks present in the roof'.
On 3 July 2020 an electrical contractor attended the premises to check the electrical circuits. He replaced down lights in the dining room, lounge room and kitchen. He also replaced an exterior coach light and light switches in the lounge room, dining room and kitchen, re-terminating their cabling. In his report the electrician notes that he "found down lights with some water staining". No fault was found in the electrical circuits that could lead to power surges and outages.
In response to the tenant's complaint about mould, the landlord's agent replied as follows: Mould can be caused by a number of reasons (cold weather, lack of ventilation, poor sunlight, water leak, steam from cooking or shower) but it is "normal" especially in winter for properties to get some form of mould and in fact there is a responsibility on the tenant to also make an attempt to clean the mould - I too have lived in properties that have attracted mould. I do agree with you that a professional needs to check this out to determine the cause to make sure that it is not caused by a leak.
The landlord's agent sent a handyman/building contractor to the premises on or about 2 July 2020 to inspect the mould. The contractor concluded it was the result of poor ventilation of the property rather than any structural defect in the premises. His report is dated 3 July 2020 and states as follows: Brief: We attended site [address of premises] to investigate reports of mould throughout the property. Initial reports by the tenant suggest severe mould throughout, however, that is not the case. We observed multiple patches of mould in the bedroom, kitchen, living area and bathroom. We proceeded to access the roof and inspect thoroughly. We found no broken tiles, no torn flashing, no rusted whirly birds or anything that could allow water to penetrate and cause the mould. Our findings/recommendations On first arrival to the property we found all doors, windows and blinds closed. The air inside was quite thick which indicated the lack of fresh air that entered the property on that day. We recommend that the tenant allows more sunlight in and ventilate more. We found the bathroom ceiling extraction fan is working, however, it did seem quite weak. We recommend to replace however, it is not necessary. We recommend pressure washing and repointing the whole roof as the cement has cracked which may allow small amounts of moisture to enter the roof cavity space. We recommend the tenant to wipe the mould with bleach or a mould away product and monitor the situation with increased ventilation Please Note: We are not alluding that the tenant does not ventilate at all we are just recommending more ventilation is carried out.
The contractor's report caused the tenant offence, resulting in an angry email exchange with the landlord's agent in which the tenant refused to permit the contractor to ever re-attend the premises due to his 'insult' of his wife (apparently the suggestion that the premises was not properly ventilated).
Despite repeated requests by the landlord's agent, in the context of routine inspections and at other times, the tenant has thereafter refused to clean away the mould on the basis of his contention that it was the result of structural defects for which the landlord was responsible, and that it presented an occupational health and safety risk for him and his wife to do so. In this respect the tenant has submitted into evidence two medical certificates dated 8 and 9 February 2021 which state that he and his wife have allergies to mould.
On or about 26 April 2021, in response to the tenant's applications to the Tribunal, the landlord's handyman/builder attempted to attend the premises by arrangement to inspect the roof for any leaks. Access was repeatedly refused by the tenant until 18 May 2021 when the contractor attended at the agent's insistence. A tax invoice issued in relation to that attendance is in evidence. It includes the following "findings" in relation to the work itemised: Findings We found x 1 cracked tile which we sealed. The tile was located directly about the dining table. Currently no mould was spotted above the dining table leading us to believe that this tile is not contributing to the mould in the bedroom and bathroom. The tile was sealed. We also inspected inside the roof and found no moisture above the bedroom even though we recently had rain.
The residential tenancy agreement was terminated by order of the Tribunal under s 85 of the RT Act on 21 June 2021. The order for possession was suspended until 21 September 2021, but the tenant in fact returned possession on 5 July 2021. The termination order was originally the subject of appeal, but by the time the appeals came before the Appeal Panel the tenant had vacated the premises. In these circumstances the Appeal Panel determined that there was no utility in considering this ground of appeal or a related asserted ground that the termination notice was retaliatory.
After the tenant returned possession of the premises, the landlord's agent conducted an outgoing inspection of the premises on 5 July 2021, taking various photographs of its condition which are in evidence. There was heated argument in the course of the hearing as to whether the tenant had been invited to attend this inspection by the landlord's agent. However, I have reviewed various email exchanges between the tenant and the landlord's agent in the days leading up to 5 July 2021. Those emails put beyond any doubt that the tenant was invited to attend the inspection but declined to do so. Nevertheless, the end-of-tenancy condition report completed as a result of that inspection is a landlord unilateral report.
For some time after the tenancy commenced the landlord did not pass on water usage charges to the tenant. However, after the parties fell into dispute the landlord insisted on this payment. By invoice date 15 June 2021 the landlord claimed payment for water usage for the period 11 December 2020 to 15 March 2021 in the amount of $141.00. A copy of that invoice is in evidence. It attaches a copy of the relevant Sydney Water bill issued to the landlord, which is dated 16 March 2021. The landlord later issued the tenant with a further water usage bill for the period 16 March 2021 up to 5 July 2021 in the amount of $150.40. That invoice is in evidence. It is supported by an end-of-tenancy water metre reading. The amount owing has been calculated pro-rata for the period based on the previous period rate.
There is a dispute between the parties as to whether the premises included the water efficiency measures required by the RT Act and RT Regulation.
In respect of this issue the landlord relies upon a 'Water Efficiency Compliance Certificate' issue by a licensed plumber trading as Kat Plumbing. The Certificate states as follows: WATER EFFICIENCY COMPLIANCE CERTIFICATE This document confirms that [address of premises] meets the NSW Governments requirements for water efficiency measures as per clause 11 of the Residential Tenancies Regulation 2010, with water saving devices installed in all cold water taps, tap ware complying with 9 litres per minute and all toilets having twin flush functions. This testing was completed on 27 September 2019. There are no current leaks on any of the taps/toilets when this test was completed.
The tenant contends that water efficiency measures were not installed at the premises and that there was a leaking shower head, both of which disentitle the landlord to claim water usage. In respect of the first contention, he says: Non-payment of water usage was a decision I made. After thoroughly testing the shower, bathtub and laundry taps. All listed taps exceeded 9 litres per minute. Pictures and video of the leaking shower attached as further evidence. I emailed [landlord's agent] regarding refusal to pay. Basing my decision of not paying due to non-existent and non-compliant water saving devices. Causing excessive water wastage breaching residential tenancies act over 9 litres of water per minute.
As evidence of the 'water test' he conducted the tenant has filed 8 photographs which include an image of a small watering can in a bath and a bath partially filled with water. These photographs do not reveal anything sensible concerning water efficiency.
As evidence that the roof of the premises has structural defects resulting in water ingress into the premises, the tenant relies upon a quote dated 6 March 2021 provided by Brendan Rice from a business trading as Sydney Local Roofers, which he refers to as a "roof report". The quote notes the following under the heading "description": Roof report Single story 25 degrees pitch tiles roof 80% of roof 2 degrees asbestos sheets 7 degree tile flat side 1 person roof report Moss on tiles Crack tiles Ridges need recement and pointing as the age of the flexible cement has lost its bond and washed away Both Whirly Birds have stopped spinning due to the weathering of the ball bearings. The flat tile section is under Australian section (sic, standards?) in degrees which would all water in heaven rain (sic, ?) Needs to be resark every 7 years or change to metal roof Asbestos roof needs to be change to clip lock roof and taking rubbish to correct place. Roof needs to be pressure cleaned to clean the moss off Flashings need to be sealed to clean the moss off Quote to fix all of the above $9,200.00 plus gst
In relation to the issue of water ingress and mould the tenant also relies upon a report from a business trading as Mould Removal Australia which is dated 17 March 2021. That report relevantly states (with reference to photographs which cannot be included here): Water Penetration/Odours: Causation and Prevention … Surface mould was evident on several ceilings and upper walls, in most instances it has been caused by condensation. Only a few mould patches were from roof tile leaks, when your roof tiles have a leak the moisture passes through the ceiling Gyprock staining the ceiling paint by leaving tan stains under the mould. I would say actual leaks appear minor at the time of the inspection and the insulation in the roof void did not appear to be water damaged indicating the leaks are due to some cracked tiles or ridge capping. Dry at the time of inspection and no really water damage present (sic) … [referring to the exterior cladding] Why is cladding damaged is the wood in the wall cavity saturated and is there termites due to the water pooling along this area? Roof guttering sagging rain water pooling wall damaged? There are two whirlybirds fitted to the roof but neither appear to be working, when functioning correctly these draw air upwards and out of the roof void moving air is drying air Are the street exit pipes all connected and allowing roof draining to exit into the street as they are supposed to? Front fence leaning indicates possible storm water drainage saturation occurring from behind possibly due to poor roof drainage seeping downhill with gravity Are the existing downpipes the correct size to cope with the volume of water escaping from the roof? Sub-floor saturation appears to be occurring regularly, this often increases internal condensation issues. It appears that the stormwater system may be blocked and overflowing from the roof gutterings around the external walls of the home, this water then penetrates the sub floor/slab areas as it makes its way down hill. Saturated sub floor/slab areas create excess internal moisture inside the home especially in winter when inside is heated (hot air rises drawing wet cold air in behind it) condensation forms on the ceilings, walls and windows and the cycle begins. The homes roof rain water should be escaping into the street or to an exit point but it would appear the system is not fully functioning therefore very little rain water is escaping the property and this water just overflow from the roof gutters and downpipes saturating the soil, external walls and sub-floor areas of the home and increasing dampness inside. Storing items under the house can trap dampness in the soil and restrict a natural air flow that helps keep the sub floor area dry. Goods stored under a home often become mouldy and start to rot/decay increasing the presence of mould and well as musty odours Rainwater overflowing from the roof gutters along the side and rear of the home pooling and seeping downhill with gravity to the sub floor saturating the soil, increasing internal condensation issues as the home is heated by the warmth of the sun this damp airs (sic) is drawn up and into the home. Recommendations Plumber required to check the stormwater system at the property ensure it is fully functioning as it was designed to … Remove rubbish from under the home to help the soil stay drier Clear drains and repair pooling areas along side and rear of dwelling Replace cracked roof tiles or ridge cap mortar where required Regularly check wood behind cladding for termites or wood rot.
In relation to his claim that the electrical circuits in the premises were dysfunctional, the tenant relies upon an electrician invoice dated 11 March 2021 which incorporates the following statement under the heading "Report": REPORT On inspection found due to water damage several lights in several areas are affected, and not working. Also found lighting circuit along with all other circuits are not protected by safety switches, this can potentially be a fire hazard and unsafe.
In his Statutory Declaration dated 20 January 2022, the tenant states (relevantly): … I also declare that no repairs from the landlord were ever carried out by the landlord and his representatives. Regarding mould on ceilings, electrical faults and surges, no repairs done to pre-determined "structural issues". Attempt to repair roof was carried out by their tradesman on the Monday 17 May 2021. The tradesman John was seen with a hammer banging on the roof. This was his method of choice to attempt to repair roof tiles. Total time spent on supposed repair was 15 minutes. On a previous occasion the same tradesman applied black silicon on roof and was disrespectful and rude to my wife in my absence.

Jurisdiction

There is no issue that the Tribunal has jurisdiction to hear and determine this dispute in accordance with the provisions of the RT Act.
In respect of the tenant's rent reduction claim, it is clear that his applications were made before the end of the residential tenancy agreement as is required by s 44(3) of the RT Act. In respect of the tenant's compensation claim, he has conducted his case on the basis that the landlord has failed to carry out necessary repairs over the whole period of the tenancy. It is thus an allegation of continuing breach of the covenant to repair by the landlord. As his applications were made before the end of the tenancy they are within the time limit imposed by s 190(1) of the RT Act and Regulation 39(9) of the Residential Tenancies Regulation 2019 (RT Regulation).
In respect of the landlord's compensation claims, the application has been made within 3 months of the end of the tenancy, which is the date the tenant's obligations to return the premises reasonably clean and in a similar condition to the condition they were in at the start of the tenancy vested. The application has thus been made within the time period permitted by s 190(1) of the Act and r 39(9) of the Regulation. The landlord's water usage claim also satisfies the preconditions for such a claim imposed by s 39 of the RT Act (as to which see following).

Applicable law

The landlord's covenant to maintain the premises in a reasonable state of repair is found in s 63 of the RT Act which appears in Part 3, Division 5 of the Act. The covenant is made a term of every residential tenancy agreement by operation of s 63(4). Section 63(1) provides that 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. Section 63(2) provides that this obligation applies even though the tenant had notice of the state of disrepair before entering into occupation of the residential premises. Section 63(3) provides that a landlord is not in breach of the obligation to provide and maintain the premises in a reasonable state of repair if the state of disrepair is caused by the tenant's breach of Part 3.
The term 'provide' refers to the state of repair at the commencement of the tenancy, and the word 'maintain' refers to the state of the premises during the tenancy: Austin v Bonney [1999] QCA 8. The obligation to 'provide' premises in a reasonable state of repair imposes a duty on a landlord to repair any defects in the premises that were discoverable by a thorough but non-technical inspection: New South Wales v Watton [1998] NSWSC 589. The obligation to 'maintain' premises in a reasonable state of repair requires notice to the landlord of the existence of a defect in the premises requiring repair: Northern Sandblasting P/L v Harris (1997) 188 CLR 313 at 370-371 per Gummow J.
The Tribunal's power to order that the rent payable for the premises is excessive having regard to the reduction or withdrawal by the landlord of any goods, services or facilities provided with the residential premises is found in s 44(1)(b) of the RT Act. That section empowers the Tribunal to order that from a specified day the rent for the residential premises must not exceed a specified amount. Such an order can have effect for a period of up to 12 months: s 44(6)(a). Section 44(5) provides that the Tribunal, may, relevantly, to the circumstances of this case, have regard to the following factors in determining whether the rent is excessive without limiting the factors that may be considered: the general market level of rents for comparable premises in the locality or similar locality, the landlord's outgoings under the residential tenancy agreement, any fittings, appliances or other goods provided with the residential premises, and, the state of repair of the premises.
In Roberts v Aboriginal Housing Office [2017] NSWCATAP 9 at [123] an Appeal Panel cited with approval a decision of McClellan J in Eliezer v Residential Tribunal and Ors [2001] NSWSC 1092 in which his honour held at [37] with respect to an antecedent provision to s 44(1)(b) of the current RT Act that the words "goods, services and facilities provided" are confined to the physical and other facilities, goods or services, provided within, or as part of, the premises and that the section is only engaged if it is the landlord (as opposed to a third party) who reduces or withdraws those facilities. As to the distinction between the terms 'reduction' and 'withdrawal' the Appeal Panel held at [124]: As to what constitutes a reduction, in our view this means the goods, services or facilities are of a qualitative or quantitative standard which is less than what a landlord is required to provide under a residential tenancy agreement. On the other hand, a withdrawal suggests there must be a removal or inability to use the particular goods, services or facilities. That is, the goods services or facilities or part of them are no longer available to a tenant.
The obligation to leave premises clean at the end of the tenancy is qualified by two factors. Firstly, the state of cleanliness in which it was in at the start of the tenancy, and second, by a reasonableness standard. This is an objective standard. It is not the standard of a fastidious and obsessive landlord: Fitzpatrick v Wu NSWRT, 2001, (01/16425).
The obligation at the end of a tenancy to leave premises in a condition as close as possible to the condition it was in at the start of the tenancy is qualified by the tenant's right to reasonable use of the premises, and by the reasonably expected period of use of the rental asset. A tenant is not strictly liable for any change in the condition of premises during a tenancy. Any wear and tear that is associated with reasonable use, or which arises as a result of natural forces (such as the ageing of an asset) is 'fair' and cannot constitute a breach of the tenant's obligation: Elhassen v Ayoub [2018] NSWCATAP 34 at [6]. What is 'fair' wear and tear is assessed objectively according to contemporary standards: Adoncello v Sazdanoff (Tenancy) [2006] NSWCTTT 577 at [78]. It is not according to the standard of a fastidious and obsessive landlord: Fitzpatrick v Wu NSWRT, 2001, (01/16425). The onus of establishing fair wear and tear rests on the tenant: Westpac General Insurance v Cooper [2006] ACTSC 91 [at 14].
The landlord's claim in relation to the condition of the lawns turns on the contention that the tenant caused or permitted "intentional" or "negligent" damage to the residential premises in the course of the tenancy. In the context of the RT Act, for conduct to be "intentional" it must be "pre-meditated": Lindsay v NSW Land and Housing Corporation [2016] NSWCATAP 128 at [45]. This requires proof that the tenant had "determine[d] on [a particular] result or such result must be that person's aim or purpose." Intention will not be present if the result was unforeseen": Cure v Bridge Housing Ltd [2014] NSWCATAP 80 at [43]. For conduct to be negligent there must be evidence of a lack of reasonable care and attention, or of a non-performance of a duty, or of neglect-full-ness of, thoughtlessness in relation to, or inattentiveness to, an obligation or duty by the tenant: cf Sunray Investments P/l v Cruwys [1992] NSWRT 95. This is an objective test.
The onus of proving negligent or intentional damage rests with the landlord: Westpac General Insurance v Cooper [2006] ACTSC 91 [at 14]. If a landlord seeks to prove that a tenant has caused or permitted intentional or negligent damage, they must establish a credible hypothesis as to how this damage was caused: (Fitzpatrick v Wu unreported, NSWRT, 2001, 01/16425).
The entitlement of a landlord to charge a tenant water usage is found in s 39 of the RT Act, which is made a term of every residential tenancy agreement by operation of s 39(7). A tenant must pay the water usage charges for the residential premises, but only if (relevantly): (a) the premises are separately metered, (b) the premises contain water efficiency measures prescribed by the regulations, and (c) the charges do not exceed the amount payable by the landlord for water used by the tenant: s 39(1). A tenant is not required to pay the water usage charges unless the landlord gives the tenant a copy of the part of the water supply authority's bill setting out the charges, or other evidence of the cost of water used by the tenant: s 39(2). A landlord must give the tenant not less than 21 days to pay the water usage charges: s 39(3). A tenant is not required to pay the water usage charges if the landlord fails to request payment from the tenant within 3 months of the issue of the bill for those charges by the water supply authority: s 39(4). Subsection 39(4) does not prevent a landlord from taking action to recover an amount of water usage charges later than 3 months after the issue of a bill for those charges, if the landlord first sought payment of the amount within 3 months after the issue of the bill: s 39(5). A landlord must ensure that the tenant receives the benefit of, or an amount equivalent to, any rebate received by the landlord in respect of any water usage charges payable or paid by the tenant: s 39(6)
The water efficiency measures prescribed by s 39(1)(b) of the Act are found in Regulation 10 of the RT Regulation. The prescribed measures are (relevantly): (a) for shower heads, a maximum flow rate of 9 litres a minute; (c) for internal cold water taps and single mixer taps for kitchen sinks or bathroom hand basins - a maximum flow rate of 9 litres a minute; and (d) at the commencement of the residential tenancy agreement, the premises are checked and any leaking taps or toilets on the premises are fixed.
The parties bear the onus of proving the elements of each of their claims to the civil standard of proof: that is, to the comfortable satisfaction of the Tribunal on the balance of probabilities: Brigninshaw v Briginshaw (1938) 60 CLR 336. With respect to their compensation claims, the parties bear the onus of proving, first, that there was a relevant breach by the other of an obligation owed to the other party under the residential tenancy agreement, and if that is proved, second, that they have suffered reasonably foreseeable damage and loss as a consequence of that breach for which they are entitled to be compensated: Hadley v Baxendale [1954] EWHC J70l.
An award of damages arising from a breach of a residential tenancy agreement is compensatory, just as it is with other types of contracts. Its objective is to put the injured party in the position they would have been in had there been no breach, so far as money is capable of doing so. The injured party is not entitled to any amount of compensation that would result in them being put in a better position than they would have been if there had been no breach: Marcourt v Clark [2012] NSWCA 367 at [98-99]; O'Brien v Twynam [2016] NSWCATAP 125 at [80 to 85].

The tenant's claims

The tenant's rent reduction claim is based on two propositions. First, that the landlord failed to carry out repairs to the roof and/or plumbing associated with the residential premises which resulted in water ingress and mould to the interior. In oral argument, the tenant contended that he was unable to use two bedrooms because of the ceiling mould, and that his qualitative use of the premises generally was affected by mould. Second, that the landlord failed to carry out effective repairs to the electricity supply to the premises, and that as a consequence, his use of this service was reduced because of power surges and outages.
Dealing with the second of these claims first I am not satisfied on the evidence before me that there was any state of disrepair of the electricity service after the attendance of the landlord's electrician on 3 July 2020.
In respect of the period up to that date the tenant has failed to sufficiently particularise his claim so as to enable me to determine which lights were inoperative and over what period of time, or if there was any other relevant disruption to his electricity service. For example, he had not provided the date(s) upon which any power surge or outage occurred or details about the duration of any such event. I am therefore not able to determine the degree to which the tenant's use of this electricity service was interrupted and its impact on him and his family up to the date these repairs were carried out. I follows that there is insufficient evidence to support any order reducing rent on this ground in respect of the period up to 3 July 2020.
In relation to the period after 3 July 2020 the only evidence the tenant has submitted to establish any reduction or withdrawal in his electricity service is his electrician 'report' dated 11 March 2021. That report states that lights in 'several areas' are affected by water damage and are not working. The report does not say which lights, or how many, are affected, and in this respect is unsatisfactorily non-specific. Nor does the tenant, anywhere in his evidence, particularise which lights were not working and over what period of time they were inoperative after 3 July 2020. Nor has the tenant provided any particulars about the dates upon which the premises experienced power surges or disruptions after 3 July 2020 or in relation to the duration of any such disruption. It follows that there is insufficient evidence to support any order reducing rent on these grounds after 3 July 2020.
The second comment made by the tenant's electrician is that the power circuits in the premises are not protected by safety switches. The electrician has not referenced any Australian standard or other requirement which establishes that this constituted a state of disrepair or non-compliance with a mandatory safety requirement. In the absence of any evidence of this kind, it is not open to me to find that the electricity service was provided to the tenant by the landlord at a standard qualitatively below that which a landlord is required to provide such a service. Again, it follows that there is insufficient evidence to support an order reducing rent on this ground.
The tenant's mould related rent reduction claim requires him to establish that the mould was the result of some action or inaction by the landlord, which resulted in particular rooms being constructively withdrawn from the residential premises, and in a qualitative reduction in use of the premises below that required to be given by a landlord under a residential tenancy agreement. It is not sufficient for him to show that the premises had mould. Mould may result from a range of factors, including conduct by a tenant in failing to keep premises reasonably clean and ventilated.
Despite the tenant's contentions to the contrary, his evidence that the mould was the result of water ingress into the premises arising from some structural defect in the plumbing and drainage systems and/or from a state of disrepair of the roof is weak, self-contradictory, and speculative. His mould inspector notes mould on several ceilings and upper walls and states that "in most instances it has been caused by condensation". He states that only a "few mould patches [are] from roof leaks" but then states that the insulation in the roof void "did not appear to be water damaged indicating the leaks are due to some cracked tiles or ridge capping". He then states the roof void was "dry at time of inspection and no really (sic) water damage present". With respect, these statements are self-contradictory and otherwise do not make sense. If the insulation is not water damaged how can there be a roof leak? The tiles and ridge capping are part of the roof above the insulation. How could the absence of water damage to the insulation indicate that there was water ingress from the tiles and ridge capping?
The mould inspector's comments about the exterior cladding, roof guttering, water pooling and drainage system are in the form of a series of questions for which no definitive answer is given. The report concludes with the recommendation that a plumber be engaged to check the storm water system to ensure it is fully functioning. The evidence set out by the mould inspector is merely suggestive of issues that require further investigation. These questions and comments are not sufficiently robust to enable a finding to be made that there is any structural defect or state of disrepair associated with these items.
The tenant's 'roof report' is sufficient to establish that the roof is in a state of some dilapidation and requires refurbishment. It is not sufficient to establish that there is water ingress into the premises through the roof causing mould. There is a garbled reference to part of the roof not being compliant with an Australian 'section', which may mean an Australian Standard. If that is the case, no reference is given to the standard, and no reason is stated for why that section of roof does not comply with it or why it 'would allow water in 'heaven' (presumably, 'heavy') rain'
There is some evidence that supports the tenant's contention that there was water ingress into the roof cavity at some time. The landlord's electrician report dated 3 July 2020 found that the "down lights have some water staining" which is consistent with what the tenant's electrician states in his report dated 11 March 2021. The landlord's handyman/builder contractor also states in his report dated 3 July 2020 that the tile cement has cracked which may allow some minor water penetration. However, none of this evidence is sufficient to establish the degree of water ingress the tenant contends for. Additionally, the reports of the landlord's handyman/builder dated 3 July 2020 and 18 May 2021 do not find any water penetration from the roof into the roof cavity or the ceilings below.
On the basis of this evidence it is not open to me to find that the cause of the mould in the interior of the premises was water ingress into the premises caused by a state of disrepair of the roof or some other structural defect of the premises related to its cladding, plumbing or drainage systems. Nor is there any other conduct by the landlord that was productive of the mould.
For the forgoing reasons I am satisfied that the tenant's rent reduction claim must be dismissed. He has not demonstrated on his evidence that there was any reduction or withdrawal by the landlord of any good, service or facility provided with the residential premises.
For similar reasons the tenant's compensation claim must be dismissed. He has not established on his evidence that the landlord failed to maintain the premises in a reasonable state of repair having regard to its age, the rent payable for, and prospective life of the premises. The tenant's evidence is sufficient to establish that the residential premises, in particular the roof, was in a state of some dilapidation and required (or could have benefited from) some refurbishment. However, for the reasons set out above he has not proved any state of disrepair of the roof or electrical circuits that required repairs that the landlord failed to carry out. When the tenant first reported a problem with the electrical circuit, the landlord arranged an electrician to inspect the power circuits and repair the lights that were not working. The landlord's contractor handyman/builder attended the premises on several occasions to inspect the roof in response to the tenant's complaints, and carried out a repair to a cracked tile on 18 May 2021.

Cleaning

The landlord claims $310.00 in compensation for the costs of cleaning at the end of the tenancy. This is half the amount of a cleaning contractor's invoice dated 10 July 2021, which is in evidence. The invoice itemises various cleaning jobs and one item of minor maintenance (replacement of a heater light globe). The landlord does not claim the whole amount of the invoice because he concedes that the premises was not entirely clean at the start of the tenancy. The amount claimed is referrable to mould cleaning which is itemised as follows: … Treat and clean mould across the entire drop ceiling across kitchen lounge area Treat and clean mould all over the bathroom ceiling, walls/grout & in shower cubicle … Treat and clean mould on front windows Treat and clean patches of mould across kitchen/lounge room ceiling Treat and clean excessive ceiling mould all over main bedroom ceiling Treat and clean patches of mould on ceiling in two remaining rooms Clean all ten (10) pull down blinds including mould on blinds …
The Start of Tenancy Condition Report prepared by the landlord states (despite his concession) that the premises was clean throughout at that time. That condition is supported by the photographs that are incorporated into that report. The tenant's dissenting comments to the effect that the premises was in various respects not clean are not supported by any contemporaneous photographs. Nevertheless it does not appear that the landlord challenged these comments at that time. The tenant's comments do refer to mould on the bathroom tiles and on various blinds. However, there is no reference by the tenant to any mould on any wall or ceiling at the start of the tenancy.
On the evidence before me, the tenant first raised the issue of mould on the walls and ceilings with the landlord's agent on 16 June 2020, which was 9 months after the tenancy commenced. It thus clearly developed in the course of the tenancy. I am satisfied on the evidence of both parties that the mould on the walls and ceilings was caused by condensation, not water ingress. Condensation occurs due to humidity interacting with cold surfaces and can be avoided with adequate ventilation. The photographs taken during the landlord's routine inspections reveal that the tenant kept the premises in a cluttered state and that two bedrooms were stacked high with household goods and boxes. These stacks obstructed access to the windows of those rooms. I am satisfied on this basis that these windows were not regularly opened to ventilate the rooms. I note that the state of the interior of these rooms depicted in the routine inspection photographs is consistent with the report made by the landlord's handyman/builder contractor on 3 July 2020.
Special Condition 48 imposed a specific obligation on the tenant to control mould by, among other things, adopting a regular cleaning routine, ensuring adequate ventilation, and by adopting lifestyle practices that would reduce the accumulation of condensation. There is no issue that the tenant steadfastly refused to clean the mould on the walls and ceilings throughout the tenancy, and I am satisfied for the reasons set out above, that he failed to ensure adequate ventilation by avoiding clutter and regularly opening windows. This was causal of condensation on the walls and ceilings and of the mould that developed in these locations. The mould on the walls and ceilings at the end of the tenancy constituted a very significant departure from their condition, and the state of cleanliness of the premises more generally, at the start of the tenancy. On this basis I am satisfied that the tenant breached his obligation to return the walls and ceilings reasonably clean, having regard to their condition at the start of the tenancy.
The cleaning contractor's invoice itemises the cleaning of mould from the bathroom and curtains. I am not satisfied that the landlord is entitled to be compensated for these cleaning jobs because mould in these areas is referred to by the tenant in his dissenting comments in the Start of Tenancy Condition Report. However, even after disallowing these components, the amount claimed by the landlord for other mould cleaning is relatively modest. I will allow the landlord the $310.00 claimed on this basis.

Lawn maintenance

The photographs of the lawns incorporated into the start of tenancy condition report (for example, images 350, 351, 359, 360, 369, 370, 271) depict full intact buffalo grass lawns, neatly mowed. As noted above, the tenant did not dissent from the condition stated by the landlord in that condition report, which was, relevantly, that the lawns were in undamaged condition.
At the end of the tenancy the lawns were substantially dead with bare earth. This is compellingly illustrated in the photographs the landlord's agent took on or about 5 July 2021 which are in evidence. The landlord contends that this condition was the result of the tenant failing to feed and water the lawns. That is a plausible theory of causation for this damage.
The tenant did not dispute the condition of the lawns at the end of the tenancy. However, he contends that the lawn just died because of prevailing weather conditions, which was beyond his control. However, I am not satisfied that this is so. Such extensive damage to the lawns could have been avoided by the tenant exercising reasonable care in their maintenance. There is no evidence of any structural defect in the lawn (such as poor drainage, or poor soil quality) that could account for such a stark deterioration in the condition of the lawns from the start to the end of the tenancy. I am thus satisfied that the tenant breached his obligation to return the lawns in a condition as close as possible to the condition they were in at the start of the tenancy, fair wear and tear excepted, by his failure to take appropriate care of the lawns in the course of the tenancy.
The compensation claimed by the landlord is based on a garden maintenance contractor's quotation for the cost of treating the lawns with Buffalo grass seed and regular watering over an at least 6 week period. The alternative treatment recommended is to re-turf the lawns at a cost of $1,200.00. Against that option the $350.00 claimed by the landlord in compensation is relatively modest, and I will allow it.

Water usage

It is not in issue that the premises is separately metred for water. I am also satisfied on the basis of the Water Efficiency Compliance Certificate issued by Kat Plumbing on 27 September 2019 (3 days before the start of the tenancy) that the water efficiency measures required by the RT Act and Regulation were in place at the start of the tenancy. The landlord has otherwise satisfied the preconditions imposed by s 39 to be entitled to require the tenant to pay water usage.
The 'water test' the tenant relies upon to dispute the existence of water efficiency measures is essentially a bare assertion supported by photographs that have no probative value whatsoever. This 'evidence' is not capable of prevailing over the landlord's Water Efficiency Compliance Certificate.
The tenant contends that the shower head was leaking at the time he conducted his 'water test'. Whether or not that is the case is irrelevant to the landlord's entitlement to claim water usage. It would only be so if this leak existed at the start of the tenancy, but I am satisfied on the basis of the landlord's Water Efficiency Compliance Certificate that this was not the case. I also note that the tenant does not refer to any leaking shower head in the condition report he returned at the start of the tenancy.
If a leaking water outlet occurs in the course of the tenancy a tenant will have a remedy of repair, and potentially a right to compensation for any excess water charges incurred as a result of the leak. However, a leaking water outlet occurring during the course of the tenancy does not disentitle the landlord to claim water usage if all water efficiency measures were complied with at the commencement of the tenancy.
For the foregoing reasons the tenant must pay the landlord water usage for the period 11 December 2020 to 5 July 2021 in the amount of $291.40.

Orders

For the foregoing reasons I make the following orders: In RT 21/39348 and RT 21/39349 1. The applications are dismissed. In RT 21/41277 1. Billal Yassine must pay Tariq Saeed $951.00 immediately.

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: 29 July 2022

At a glance

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Judgment (14 paragraphs)

Legislation Cited (2)

Cases Cited (12)