Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Becker v Priestley [2022] NSWCATCD 167 Hearing dates: 22 June 2022 Date of orders: 26 July 2022 Decision date: 26 July 2022 Jurisdiction: Consumer and Commercial Division Before: G Bassett, General Member Decision: (1) The application is dismissed because, having considered the material placed before it, the Tribunal is not satisfied (at the civil standard of proof) that the grounds required to make the orders sought have been established. Catchwords: LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) Repairs — Landlord's duty — Repairs — Urgent repairs — Excessive rent Legislation Cited: Residential Tenancies Act 2010 (NSW), sections 31(a), 44, 63, 64 Category: Principal judgment Parties: Joanne Becker (Applicant) Benjamin Priestley (Respondent) Representation: Applicant (self-represented) J Masteries, Agent (Respondent) File Number(s): RT 22/14312 Publication restriction: Nil REASONS FOR DECISION Procedural history and application 1. On 31 March 2022 the tenant lodged a claim for: 1. rent reduction for withdrawal of goods, services, or facilities 2. compensation of $580.00 and $625.00 3. amendment of a condition report 4. order for landlord carry out repairs. 1. The matter came before the Tribunal on 28 April for a conciliation hearing. It did not settle, and orders were made for a contested hearing. At order 1 the Tribunal noted a rent reduction of $75.00 per week was sought for the entire tenancy. In addition, $580.00 was sought for mould remediation costs and $625.00 for "purchase of rugs and loss of amenity". Law in relation to the claims 1. Under section 43(1) of the Act a tenant may make a written request to the landlord at any time for a reduction in rent if the landlord reduces or withdraws any goods, services or facilities provided with the residential premises, even if those goods, services, or facilities are provided under a separate or a previous contract, agreement, or arrangement. The tenant wrote to the landlord on 2 February 2022 seeking a reimbursement of first 2 weeks of rent as she was not able to move in and her time for cleaning and reimbursement of her costs for treating/painting mound. No specific request was made for an ongoing rent reduction. 2. Under section 44(3) a tenant may also seek an order that rent is excessive if there has been a reduction or withdrawal of any goods, services or facilities provided with the residential premises, even if those goods, services, or facilities were provided under a separate or a previous contract, agreement, or arrangement. 3. If the Tribunal finds rent is excessive (as opposed to an excessive rent increase), under section 44(6) it may specify a maximum amount of rent for the period specified by the Tribunal, though this may not exceed 12 months. 4. Under Section 63 of the Act a landlord has a general duty to "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". However, section 65 of the Act limits the orders the Tribunal may make for an application under section 63. The Tribunal may only order that the landlord carry out repairs or that the landlord reimburse the tenants for payments they made for urgent repairs. Consequently, under section 44 the Tribunal has considered whether rent was excessive and, if so, what amount it would be reduced by. An order could be made for the landlord to compensate the tenants for excessive rent already paid in this period. The Tribunal must be satisfied the landlord has breached the obligation under this Act to 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. The landlord must have had notice of that repair. 5. In this case the tenant seeks to recoup the sum of $580.00 she alleges was paid for urgent treatment of mould when she moved into the premises. At section 64 the Act states: 64 Urgent repairs to residential premises (1) A landlord must, not later than 14 days after being given a written notice from the tenant, reimburse the tenant for the reasonable costs of making urgent repairs to the residential premises. (2) A landlord is required to reimburse the costs only if— (a) the state of disrepair did not result from a breach of the residential tenancy agreement by the tenant, and (b) the tenant gave the landlord or the landlord's agent notice of the state of disrepair or made a reasonable attempt to do so, and (c) the tenant gave the landlord or landlord's agent a reasonable opportunity to make the repairs, if notice was given, and (d) the tenant has made a reasonable attempt to arrange for a licensed or otherwise properly qualified person nominated in the residential tenancy agreement to carry out the repairs, if such a person is so nominated, and (e) the repairs were carried out, if appropriate, by licensed or otherwise properly qualified persons, and (f) as soon as practicable after the repairs were carried out, the tenant gave the landlord or landlord's agent, or made a reasonable attempt to give the landlord or landlord's agent, a written notice setting out details of the repairs and the costs of the repairs, together with the receipts or copies of receipts for costs paid by the tenant. 1. Under section 33 the Tribunal may make an order as to amendment of a condition report. 2. Under section 187 a tenant may also seek an order for money and for compensation. Evidence of the parties and findings of fact 1. The tenancy began on 5 January 2022 and rent was $550.00. The tenant was still in possession of the premises at the time of hearing. 2. In oral evidence the tenant said the sum of $625.00 was for her "experience as I need to defer annual leave to make the property fit" and for the behaviour of the agent handling her tenancy. In her written submissions she alleged she was also caused ongoing stress for lack of security in the master bedroom. These claims were in addition to those noted by the Tribunal at the conciliation hearing relating to "purchase of rugs". 3. The tenant said that as soon as she opened the apartment on taking possession on 5 January there was "mould all over" the ceiling. She said carpets were damp. The tenant alleged she paid to remove mould 2 days later. It was common ground she was unable to contact a real estate agent at that time as the agency was closed from before Christmas until 9 January 2022. The tenant relied on 3 photos in evidence of the alleged mould. It was difficult to see on these photos (tenant documents page A7). The photos of the tenant purported to have been taken "closeup" with mould "clearly visible". It was not. It was not severe or extensive in these photos. The Tribunal accepts the agent's assertion that when shown these photos there was no clear indication that might satisfy the landlord that he ought to reimburse a tenant for any costs in rectifying this mould. The tenant said she could not find anyone to fix the mould. Instead, she had the ceiling painted. An invoice from the painter for work done on 7 January stated it was for "mould treatment to the ceiling area" (tenant documents page A10). There is no efficacy in painting a ceiling to treat mould unless the cause of the mould has been identified and treated. It was not. If mould have been present it follows that given such a cursory painting it would have reoccurred. There was no evidence it did. The Tribunal finds that mould was not so serious in early January to require urgent repair. 4. On 2 February the tenant provided a list of complaints and issues regarding of the tenancy. These included: 1. stained floors and exposed threads 2. mention of the ceiling mould issue dealt with above 3. she spent 4 days cleaning the premises on moving in 4. wet carpet 5. tenant included a copy of her comments on the entry condition report 6. she alleged she vacated the premises and in oral evidence said she returned only on 7. requested 2 weeks rent abatement and recompense for the mould treatment, a rent reduction as there was no window in the master bedroom and compensation for covering floors with rugs. 1. The tenant referred to her entry condition report comments and sought rectification of defects outlined in it. Those comments were not done in the 7-day period required on taking possession. Instead, on 3 February 2022 tenant comment on that report stated: 1. visible mould was still on the ceilings even though the tenant alleged she had paid to have it rectified by the painter on 7 January 2. dishwater not draining 3. microwave unusable 4. bathroom sink did not drain 5. no security on French doors in master bedroom or ventilation 6. wet carpet 7. cigarette burn mark on toilet 8. bathroom window lock broken 1. The tenant conceded during the hearing that all repairs she sought had been completed by the landlord but for a French door that had problems with closure. 2. Tenant alleged she lost the benefit of a period of leave from work as she had to remedy the premises herself. She said the agent handling the property at the time did not agrees her complaints adequately and engaged in "hostile" emails. She alleged the agent had told her to "shut up". That agent no longer managed the property and the agent representing the landlord at hearing was not able to give evidence on these claims. The tenant said she was not able to move into the premises for 2 weeks. She said she relocated to her sister's place and returned to the premises on 16 January 2022. 3. In response to the tenant's extensive list of complaints in her late comments on the entry condition report, the agent stated these complaints were an exaggeration. For example, the ingoing inspection report showed that carpets were old and stained but had been cleaned. The tenant would have been aware of these issues, and they related to the age of the premises and the relatively cheap rent. It was also stated the tenant had the benefit of inspecting the premises prior to taking possession and had not raised all these issues. In response to the tenant's claim she had no security as her French doors could not be secured, the agent said these were fixed on 14 March 2022. In any event, the tenant had inspected the premises prior to taking possession and the doors were no different than at that time of inspection. Other roofing works were done in March, plumbing in April and dishwasher repaired at the end of May. Having done these repairs, there was no need to reduce rent. Determination 1. The Tribunal has not found the evidence of ceiling mould at the beginning of the tenancy was compelling. Even contemporaneous photos did not show extensive mould as alleged. Reliance on this evidence by the tenant showed she had a tendency to exaggerate the alleged defects. The Tribunal does not find the landlord ought to pay for these repairs under section 64. 2. The tenants comments on the entry condition report were made well outside the 7-day period allowed. They were so extensive it is not possible to see how at least a number of these issues would not have been apparent at pre-inspections or within 7 days of taking possession. The tenant tended to exaggerate defects. The Tribunal is satisfied that many comments on the condition report may be unreliable. In any event, many of the defects raised were fixed but for the contested French door. The Tribunal does not make an order for the entry condition report of the landlord to be amended. Any defects on the tenant's comments have been repaired. Given the extensive wet weather prevailing in the period, and the lack of capacity for tradespeople to carry out repairs, the Tribunal is satisfied the landlord had repairs done within a reasonable period even though this may have been longer than what may have applied in a pre-Covid world. 3. The Tribunal also accepts the tenant inspected the premises prior to entry. The French door and the layout of the premises were as shown in the pre-inspections. She would have, or ought to have been aware of any issues before entering the tenancy. A section 44 a rent reduction only applies to a reduction or withdrawal [Tribunal's emphasis] of any goods, services or facilities provided with the residential premises. There was no such reduction or withdrawal during the tenancy. Any claim for a rent reduction is not allowed. 4. In relation to the mixed claim of $625.00 for "purchase of rugs and loss of amenity" the tenant conceded during hearing the claim was one for non-economic loss due to loss of amenity rather than carpet. It was a matter of the tenant if she chose to clean the premises on moving in during her holiday period. The photos of alleged mould do not support any claim of a need to move out. The lack of response from the agent at the time did occur due to a holiday period during which the office was shut. The tenant went ahead and had the problem of the ceiling addressed. Email exchanges between the tenant and agent from early February do not show anything other than a normal interchange in relation to defects alleged and issues relating to repair. On 7 March 2022 the agent did object to the way she had been treated by the tenant and she refused to meet that tenant in person without another person present. As this agent did not give evidence, the Tribunal cannot make any findings as to what transpired between the parties. The claim for loss of amenity and non-economic loss is dismissed. 5. As the premises have been repaired there is no utility in making an order for repairs. Order 1. The Tribunal makes the following order: 1. The application is dismissed because, having considered the material placed before it, the Tribunal is not satisfied (at the civil standard of proof) that the grounds required to make the orders sought have been established. ********** 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 Amendments 19 September 2023 - Formatting amendments. 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: 19 September 2023