Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Smaistrla v Wright Family Management Pty Ltd [2021] NSWCATCD 20 Hearing dates: 9 June 2021 Date of orders: 9 June 2021 Decision date: 09 June 2021 Jurisdiction: Consumer and Commercial Division Before: P French, General Member Decision: (1) The landlord, Wright Family Management Pty Ltd, is to pay the tenant, Nadine Smaistrla, the sum of $140.00 immediately. A money order is not to issue in relation to this order. (2) The tenant, Nadine Smaistrla is to pay the landlord, Wright Family Management Pty Ltd, the sum of $2,370.72 immediately. (3) Rental Bond Services is directed to pay the landlord, Wright Family Management Pty Ltd, the sum of $2,370.72 from Rental Bond Number S838056-5. Any amount received is to be credited against the money order (Order 2). Any balance of the bond is to be paid to the tenant, Nadine Smaistrla. Catchwords: LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – tenant's claim for compensation for loss of comfort and amenity – landlord claim for unpaid rent from rental bond Legislation Cited: Residential Tenancies Act 2010 (NSW) Category: Principal judgment Parties: Nadien Smaistrla (Applicant) Wright Family Management Pty Ltd (Respondent) File Number(s): RT 21/21291 Publication restriction: Nil REASONS FOR DECISIOn 1. These are reasons for decision prepared in accordance with section 62 of the Civil and Administrative Tribunal Act 2013 (NSW) following a request to the Registrar made on or about 17 June 2021. 2. The application was made by a former tenant of rented premises (the tenant) for an order under section 175 of the Residential Tenancies Act 2010 (NSW) (RT Act) in relation to her rental bond which had been frozen by Rental Bond Services subject to the outcome of the proceedings. The tenant also applied for an order under section 44(1)(b) of the RT Act that would reduce the rent payable due to the withdrawal of a clothes dryer provided with the residential premises over a seven week period during February to April 2021. The landlord resisted the release of the whole rental bond to the tenant on the basis that the tenant owed rent in the amount of $2,642.85. 3. The application was listed for hearing in a Group List for Conciliation and Hearing on 9 June 2021 in accordance with NCAT's COVID-19 revised hearing procedure. Ms Smaistrla attended that listing of the application in person. Mr Losino, Property Manager, attended on behalf of the landlord. In accordance with the Registrar's directions, prior to the hearing, the tenant had filed and served a bundle of documents in support of her application, which was marked Exhibit 1. The landlord had not been directed to file and serve evidence prior to the hearing but Mr Losino was content to proceed on the basis of the tenant's documents and his oral evidence. Both Ms Smailstra and Mr Losino gave evidence. They also had the opportunity to ask each other questions and make submissions to the Tribunal. 4. The dispute arises from a residential tenancy agreement that was made on 2 October 2020 for a period of 6 months commencing on 3 October 2020 and ending on 9 April 2021. The tenant returned possession of the premises to the landlord on 12 April 2021. The rented premises is a 3 bedroom terrace house located in Paddington. It has three bathrooms, an enclosed courtyard, 1 car park, and separate living, dining and kitchen areas. The rent payable for the premises at all material times for the dispute was $8038.69 per calendar month. 5. In relation to the tenant's rent reduction claim she had made her application to the Tribunal on 14 May 2021 which was after she returned possession of the premises to the landlord. A claim under section 44(1)(b) is only maintainable if the applicant is a tenant at the time the application is made, which the applicant in this case was not. 6. However, the tenant's application also refers to a claim for 'compensation' which is an alternative remedy in the circumstances, provided the tenant is able to establish that the landlord was in breach of an obligation to her with respect to the dryer that resulted in her suffering reasonably foreseeable damage and loss. 7. There is no issue between the parties that a clothes dryer was provided to the tenant as a component of the goods, services and facilities that made up the residential premises. Nor is there any issue that the dryer broke down and was in operative in January 2021 up to April 2021. The tenant claims damage equivalent to $50.00 per week for seven weeks of this period due to the loss of this facility. Her claim was based on loss of comfort and amenity. No evidence of any economic loss (such as receipts for drying clothes elsewhere) was put into evidence. 8. I was satisfied that the landlord breached its obligation to the tenant to maintain the premises in a reasonable state of repair with respect to the dryer. It was clear on the evidence that the landlord was on notice, via its agent, that the dryer was inoperative from late January 2021 but failed to take effective remedial action until April. This was a continuing breach both on the basis that no repair was carried out and on the basis that there was continuing complaint by the tenant of this state of disrepair up to the end of the tenancy. 9. As I have already noted, the tenant's claim was not grounded in consequential economic loss. It was based upon a loss of comfort and amenity relative to the performance interest/consideration (the rent) she paid under the residential tenancy agreement. I was satisfied that the loss of a dryer would have had a substantial impact on the tenant's comfort and amenity, as such a facility is used regularly on a daily basis, and avoids the inconvenience and cost of having to carry clothes to an external laundry. 10. Nevertheless, the dryer is only one component of the totality of goods services and facilities the landlord provided to the tenant under the residential tenancy agreement. Its' value as a component of the rent must be determining having regard to the substantial performance (consideration) the tenant continued to receive from the landlord in relation to all other goods services and facilities provided with the premises. Doing the best that I could on the evidence before me, I allowed that the economic value of the tenant's loss of comfort and amenity relative to the rent she paid was $20.00 per week. 11. In relation to the landlords claim on the bond for rent, that dispute turned firstly on the number of days the tenant occupied the premises, and secondly, how the daily rate is to be calculated. 12. In relation to the first issue, it is not in issue between the parties that the tenant took possession of the premises on 3 October 2020 and returned possession on 12 April 2021, which is a period of 192 days. In this respect, both the first date on which the tenant received the keys and the end date on which the tenant returned the keys are to be counted. 13. The term of the residential tenancy agreement was 6 months. However, the stated rent is $8038.69 per calendar month. That figure is arrived at by calculating the rent due over a 12 month period and dividing it by 12. It is contended that in this case this has generated a discrepancy in the rent due up to the end of the agreement. 14. It is clear from the amount that the landlord required as bond ($7400.00, being the equivalent of 4 weeks rent), that it was intended that the weekly rent payable by the tenant was $1850.00. The tenant was thus obliged to pay $50,742.85 in rent over the course of her agreement ($1,850.00 / 7 x 192). It was not in issue at the hearing that the actual amount of rent paid by the tenant in the course of the hearing was $48,232.14. That means that the tenant owed the landlord $2,510.72 at the end of the tenancy. 15. The rental bond is security for the landlord and the landlord is entitled to claim against the rental bond for any amount owing by the tenant at the end of the tenancy, including rent (section 166(1)(b) of the RT Act). As a consequence of the findings set out above the landlord was entitled to an order that will require Rental Bond Services to pay it $2,370.72 from the tenants rental bond, being the rent the tenant owes less the compensation of $140.00 she has been awarded. 16. In preparing these reasons it has come to my attention that the rent figure the tenant claimed to have paid (and which was not disputed by the landlord's agent at the hearing) includes water usage of $79.90 paid on 3 October 2020 and $63.45 paid on 5 March 2021. These amounts ought to have been deducted from $48,232.14 claimed as rent paid, which means that the rent actually owed by the tenant up to the end of the tenancy was $2,654.07. 17. However, as I have not been asked by either party to amend the original orders to this effect I will leave them in place. If the landlord wishes to pursue the matter an application should be made to amend the orders pursuant to section 188 of the RT Act. ********** 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: 04 August 2021