Keene v Kuhnert [2021] NSWCATAP 65

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Keene v Kuhnert [2021] NSWCATAP 65 Hearing dates: 15 March, 2021 Date of orders: 19 March 2021 Decision date: 19 March 2021 Jurisdiction: Appeal Panel Before: The Hon F Marks Principal Member D Robertson Senior Member Decision: To the extent that leave to appeal is necessary, leave is refused and otherwise the appeal is dismissed. Catchwords: APPEAL - appeal on grounds that decision was against the weight of the evidence and not fair and equitable – held weight of the evidence justified the decision and decision not demonstrated to be not fair and equitable – appeal dismissed Legislation Cited: Civil and Administrative Tribunal Act s80,Sch 4 Cases Cited: None cited Texts Cited: None cited Category: Principal judgment Parties: Michael Keene (Appellant) Rebecca-Lee Kuhnert and Llewellyn Mills (Respondents) Representation: Each party appeared in person File Number(s): 2021/00056021 (AP 21/00461) Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal NSW Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 22 December, 2020 Before: RC Titterton OAM Senior Member File Number(s): RT 20/32232, RT 20/34047

Reasons for decision

Factual background 1. The appellant Michael Keene leased residential premises to the respondents Rebecca-Lee Kuhnert and Llewellyn Mills under a residential tenancy agreement on 13 October 2018 providing for a term of 24 months commencing on 10 November 2018. The respondents said that prior to June 2020 they had noticed small spots of mould in their bedroom which they cleaned with vinegar. In June 2020 they noticed for the first time a large patch of mould in the front bedroom of the premises which reappeared despite being cleaned. On inspection the respondents found large patches of mould in the two remaining bedrooms. 2. The respondents notified the appellant through his agent on 12 July, 2020 of the presence of the mould. Following an inspection, the appellant's agent wrote to the respondents on 14 July 2020 stating that because the mould was not present at the start of the tenancy and appeared during the tenancy, the respondents were obliged to deal with the problem. It was suggested that the affected rooms should be ventilated. 3. The respondents vacated the premises on 3 August 2020. Both parties commenced proceedings in the Consumer and Commercial Division of this Tribunal. The respondents sought an order terminating the tenancy agreement, the return of the bond and compensation for goods damaged by the mould. The appellant sought orders for unpaid rent, and the cost of cleaning, repairing, and replacing damaged items. 4. After conducting a hearing, a Senior Member issued comprehensive reasons for decision dismissing the appellant's claims and upholding those of the respondents. During the hearing evidence was adduced both orally and in written form which, relevantly, went to the cause of the mould in the rented property. In essence the appellant asserted that the mould was caused solely by the failure of the respondents to adequately ventilate the premises, allowing moisture to build up during the winter months. The respondents asserted that the mould was caused by some defect in the premises and not by reason of anything that they had done or failed to do. 5. The appellant filed a Notice of Appeal asserting that the respondents were not entitled to terminate the tenancy agreement, and that in consequence a monetary order should have been made in his favour. He asserted that the decision was not fair and equitable and was against the weight of the evidence.