Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Chris Cavallaro v Mary Wilkan [2014] NSWCATCD 115 Hearing dates: 1 July 2014 Decision date: 08 July 2014 Before: A McMurran, General Member Decision: 1.The respondent is to pay the applicant the sum of $2,274.80 immediately. Catchwords: Rent abatement; breach by landlord. Legislation Cited: Residential Tenancies Act, 2010 ("the Act") Category: Principal judgment Parties: Chris Cavallaro (applicant and tenant) Ms M Wilkan (respondent and landlord) File Number(s): RT 14/19839 Application 1 The applicant tenant filed an application in the Tribunal on 14 April 2014. The application claims an order for repayment of rent pursuant to Section 47 of the Act and termination of the tenancy. 2 The application for termination for alleged breach by the landlord has already been dealt with and is not the subject of these reasons. An order was made by the Tribunal by consent on 24 April 2014 terminating the tenancy and granting possession to the landlord on 28 April 2014. Background 3 The parties entered into a residential tenancy agreement made on 31 October 2013 ("the agreement"). The lease was negotiated by an agent, Ray White Unlimited of North Bondi, acting for the respondent landlord. 4 The premises, the subject of the agreement, were located at unit 502, 389 Bourke Street Darlinghurst in Sydney ("the premises"). The lease was for a period of 12 months expiring on 30 October 2014 at a weekly rental of $330.00, payable fortnightly commencing 1 November 2013. 5 The applicant took up occupancy on 1 November 2013 and following the consent order made on 24 April 2014, vacated the premises on or about 28 April 2014. In that period, the tenant paid the landlord a total of $6,600.00 for rent. On termination, the landlord made no claim for early exit by the tenant. 6 Following termination, the only remaining issue before the Tribunal is the application by the tenant for a payment to him arising from an alleged breach of the agreement by the landlord. The breach alleged refers to Clause 18 of the agreement which sets out as follows:- "18. The landlord agrees: 18.1 To make sure that the residential premises are reasonably clean and fit to live in; and … 18.3 To keep the residential premises in a reasonable state of repair, considering the age of, the rent paid for and the prospective life of the premises; and … 18.5 To comply with all statutory obligations relating to the health or safety of the residential premises." 7 The landlord opposes the orders sought by the tenant. The Hearing 8 The applicant appeared in person and gave sworn evidence. The respondent was represented by David Germane from Ray White Unlimited. 9 The parties had been directed by the Tribunal to file and serve copies of documents that would be relied upon at hearing. That order was made on 24 April 2014. 10 The applicant complied with that order and filed a bundle of documents received by the Tribunal on 23 May 2014. The respondent representative confirmed that he had received a copy of the applicant's bundle. The Applicant's Evidence 11 The tenant had seen an advertisement posted online in or about October 2013 which advertised the letting of the premises. Late in October, the applicant visited the premises and was shown through the property by the current tenant whose name was "Amanda". When he viewed the premises, the applicant saw there was a leak in the bathroom and when he drew it to the attention of Amanda, she said words to him to the effect:- Amanda: "Don't worry about that. Someone will be out in a week to look at it." 12 The tenant, who was apparently reassured by that statement, signed the lease on 31 October 2013 with the respondent's agent present, who at that time was a person named Daisy Stuckey. 13 The applicant says he had a conversation with Ms Stuckey to the following effect:- Tenant: "Amanda told me somebody will be out in a week to fix the leak in the bathroom." Ms Stuckey: "That's correct." 14 The tenant then gave a chronology of events which occurred after he entered the property, as follows:- · 11 November 2013 – telephone follow up with Daisy Stuckey by the tenant and an email from him noted at tab 3 of the applicant's bundle. The email says: "Just wanted to check if you had any news from strata as yet?" · 13 November 2013 – an email from Daisy Stuckey for the landlord to the tenant stating: "The strata manager is away at the moment so we are following it up with his assistant today. I will let you know once we have a response. I appreciate your patience with this issue." · The tenant responded also by email the same day stating: "Hi Daisy, no problems, thanks for getting back to me! I'll await to hear from you!" · Daisy Stuckey replied to the tenant by email on 13 November 2013 stating: "The strata plumber has just called us, we will arrange a time for him to come over and will let you know." 15 The tenant's oral evidence was to the effect the plumber made no contact with him and this resulted in a further email exchange on or about 27 November 2013, to the following effect: At 16:10pm from the tenant: "Hi Daisy can you please update me on the situation as it has been nearly two weeks since I heard from you last and the paint on the roof is now randomly flaking off above the toilet! This needs to be fixed and I don't know what is taking so long to get someone out here! I have been patient but I am beginning to become frustrated! If this is going to drag out then my rent needs to be discussed as it's not fair to pay full rent in this condition. Please advise!" At 16:14pm the agent, Daisy Stuckey, responded to the tenant by email: "Hi Chris as far as I knew the plumber had been out. I followed it up with strata, if they don't get their plumber out tomorrow I will send mine." At 16:19pm the tenant responded: "Thanks for getting back to me! I don't want to sound like a bitch but I was told by Amanda and yourself that it would be looked at in a week. It would be great if someone could come out to look at it so we can get the ball rolling! If you have any details of when can you please let me know as I would like to be home when they come?" 16 On 29 November 2013 at 9:30am the agent emailed the tenant as follows:- "Hi Chris, I just wanted to keep you updated on the below issues. The strata has given me the plumber's number so did you want to give him a call and arrange a time to come over?" 17 The agent provided the tenant with the plumber's mobile phone number. 18 At 11:12am on 29 November 2013 the tenant responded as follows: "Hi Daisy, no problems. Thanks I will give him a call to arrange." 19 The tenant gave oral evidence that he telephoned the plumber and arranged with him a time to attend the property in the first week of December. An appointment was agreed. The applicant took time off his work, being leave in lieu of wages, to meet with the plumber who did not arrive. 20 The tenant's evidence is that he rang the plumber and left messages without receiving a response. At this point, in early December 2013, the tenant then took two weeks leave returning on or about the end of December 2013 or early January 2014. 21 The next communication between the parties as per the applicant's bundle occurred on 16 January 2014, when the agent David Germane, who appeared at the hearing, wrote to the tenant by email as follows: "Hi Chris, hope you are well. Just want to see if you could confirm that the bathroom leak has been repaired by the strata?" 22 The tenant responded the same day by email to David Germane as follows:- "Hi David, thanks for your email. Daisy passed his contact details on and I made an appointment with him in December last year and he didn't show up. I tried to make contact again to reschedule but was unsuccessful. I've only just got back from holidays and was wanting to try and get him to come out when he able to next [sic]. Would you be able to contact him and make a time? If you let me know when I can arrange to be there to let him in this would be greatly appreciated." 23 David Germane did not respond immediately and the applicant followed up with a further email on 20 January 2014 to the following effect: "Hi David, any updates on this issue?" 24 David Germane sent an email on 21 January 2014 to the applicant, but the email was apparently wrongly addressed and was not relevant to the premises. 25 Since the applicant's email of 20 January 2014, there have been no further email communications concerning repairs to the premises. None of this evidence is disputed. 26 Neither David Germane nor Daisy Stuckey inspected the premises. No plumber attended the premises nor anyone on behalf of the landlord in response to the tenant's complaints. This is also not disputed. 27 The remaining evidence from the applicant consisted of colour photographs which graphically portray the extent of the water leak above the shower in the bathroom and the damage to the ceiling of the premises. It supports the applicant's oral evidence that the damage was extensive, serious in the sense that parts of the roof were "flaking off" and clearly needed urgent attention. 28 The oral evidence from the applicant asserted that the water damage had spread from the roof of the bathroom into a corridor outside the bathroom and was creating damp conditions throughout the premises. The applicant could not leave personal possessions in the bathroom as they became infested with mould. 29 The mould can be clearly seen and is visible in the photographs in the applicant's bundle. 30 The applicant gave evidence that at about this time towards the end of January 2014 he made a decision to relocate from the property. Between the end of January and early April 2014 the applicant asserts that he made at least 13 applications to rent premises elsewhere. 31 The applicant did not inform the agent of these applications or his intention to relocate. 32 When the applicant eventually found suitable alternative premises, on or about 14 April 2014, the applicant filed these proceedings seeking termination of the tenancy, which order was made, without penalty, on the first return date of the application on 24 April 2014. 33 The applicant claims monetary payment of the following amounts: 27.1 - $101.36 for time taken by the applicant in lieu of leave for being absent from his workplace waiting for the plumber. This estimate claims 3.5 hours of work at $28.96 per hour. 27.2 - An electricity disconnection fee in the sum of $96.80 27.3 - An internet disconnection fee in the sum of $201.90 27.4 - A refund of half the rent paid being a total sum of $3,300.00 27.5 - One day's pay for attending the Tribunal at $202.72 together with the Tribunal lodgement fee of $38.00. The Respondent's Evidence 34 The respondent provided a written authority in the form of a management agreement, a copy of which was tendered without objection. David Germane was granted leave to appear for the landlord. 35 The landlord tendered no evidence and did not object to the applicant's documents or oral evidence. The landlord made the following submissions: 29.1 - That the agent had attempted to follow up the tenant's complaint with the strata for the unit. 29.2 - The "follow ups" were confirmed in the email exchanges between the parties. 29.3 - The agent was bound to use the strata and its plumber to consider the repair and relied upon information from the strata and its plumber. 29.4 - The agent was informed by strata that the cause of the water leak to the tenant's premises was from the unit above, unit 602. The agent asserted that he had been informed no work needed to be done at the tenant's property in order to attend to the repair of the leak. 29.5 - The tenant had not informed the agent between end December 2013 and mid-January 2014 that the repair had not been effected, and the agent did make a follow-up enquiry himself in an email of 16 January 2014. This was so, even though the agent at the hearing asserted that he had been informed there was no repair work necessary in the premises occupied by the applicant. 29.6 - The applicant had failed to inform the agent that he was intending to relocate and that he found the premises uninhabitable. The agent asserts that if he had been so informed, he would have responded to deal with the tenant's ongoing concerns. The agent complains that he was not given an opportunity to do so. The agent also complains that the tenant did not take reasonable steps to find suitable alternative premises until mid-April which delay unnecessarily extended the tenants occupancy. 36 The respondent made no assertions as to the habitability of the premises. 37 Having tendered no evidence, the agent did not rely upon a condition report. Indeed, there was no condition report attached to the lease or tendered in evidence by either party. 38 The agent submitted that if the tenant really felt that the premises were uninhabitable then he did not make a genuine attempt to relocate promptly or efficiently. 39 The agent also denied that any disconnection fees should be payable, given they would always be at the tenant's responsibility when the time came for him to leave the premises. 40 The tenant responded to these submissions by the agent asserting that in his view the time he took to relocate was not unreasonable, being approximately 10 weeks, and that he was entitled to a reduction of his rent for the whole of the period from commencement of the lease from 1 November 2013 until his departure on 28 April 2014. DECISION 41 The Tribunal accepts the documentary evidence together with the oral evidence of the applicant. The applicant carries the burden of proving the facts necessary to show a breach of the agreement on the balance of probabilities and noting that in this case, there is no contest as to the facts as they have been presented. 42 The Tribunal is not persuaded by the submissions from the landlord that the tenant has acted unreasonably. 43 The evidence shows that the landlord was at all times aware repairs were required to fix the water leak in the bathroom ceiling from the very outset of the tenancy. 44 Between 1 November 2013 and 20 January 2014 no repair had been effected. The landlord says that repairs were carried out to other units in the premises and in particular to the unit above the applicant's at unit 602. 45 There is however, no evidence to support this assertion, nor was any expert evidence called by either party to show the extent of the damage or the repairs necessary. 46 The Tribunal is satisfied on the evidence as presented in the application and taking into all the facts and circumstances that at least part of the premises were unusable within the meaning of Section 43(2) of the Act. 47 The tenant gave evidence that he was unable to use the bathroom and was afraid to shower in the bathroom for fear that the ceiling might collapse. The evidence reveals that this was not an illogical concern on the part of the tenant, also taking into account the age of the building and the exposed plumbing pipes in the ceiling. Mould was spreading throughout the unit and the evidence is that an infestation of cockroaches arrived, partly in response to the mould and damp problem. 48 Without the use of a bathroom and an appropriate area for the tenant to bathe or shower, the unit was in fact not habitable within the meaning of Section 52 of the Act which states: (1) A landlord must provide the residential premises in a reasonable state of cleanliness and fit for habitation by the tenant 49 In the Tribunal's view, there is sufficient evidence for a finding based on the civil test that there was a serious issue in relation to health and safety raised by the condition of the bathroom and the plumbing works in the premises. 50 Section 45 of the Act provides a remedy for reduction of rent on frustration of the tenancy agreement and provides that:- (1) The Tribunal may, on application by the landlord or tenant, make an order determining the amount of rent payable if the rent is abated under Section 43(2). (2) The Tribunal may order that:- (a) From a specified day, the rent for the residential premises must not exceed a specified amount; and (b) The landlord must repay to the tenant any rent paid by the tenant since the specified day, that is in excess of the specified amount." 51 The Tribunal is satisfied on the evidence and in all the circumstances of this case that an order for abatement of the rent is appropriate under Section 43(2) of the Act, for the period from the date of commencement of the lease on 1 November 2013, when the landlord was aware of the problem, to the date of departure by the tenant on 28 April 2014. The landlord is in breach of the agreement for failing to provide premises in a reasonable state of cleanliness and not fit for habitation by the tenant. 52 Having found there is a breach of the agreement, the Tribunal must determine the amounts claimed by the tenant and what amounts in fact the landlord should pay under s 45(1) of the Act. 53 In that regard, the Tribunal notes the tenant's evidence for time off work is not supported by documents from the employer and does not meet the civil standard of proof. The two claims by the tenant in respect of payment for lost wages are disallowed. 54 Similarly, in relation to the claimed disconnection fee for the internet in the sum of $201.90, there is no independent evidence to indicate whether that fee would have been paid regardless, on the transfer of the internet service by the tenant to a new address. That claim is also disallowed. 55 In relation to the electricity disconnection fee, the evidence shows that the tenant was unable to transfer this service which otherwise would have been at no cost, in circumstances where he entered share accommodation with existing electricity connection. The Tribunal is satisfied that this fee for disconnection in the sum of $96.80 is a direct consequence of the breach of the agreement by the landlord and should be allowed. 56 The tenant's claim for refund of the lodgement fee for the application falls into the category of costs, which is disallowed on the basis the Tribunal does not ordinarily make costs' orders in such cases, this case being no exception to the general rule. 57 That leaves for determination the claim for reduction of rent under Section 45(2), in light of the finding by the Tribunal that rent should have been abated pursuant to Section 43(2), and whether any amount is payable by the landlord in the circumstances of this case. 58 The tenant claims a percentage reduction of 50% of all rent paid, being a sum of $3,300.00 and on the basis that the premises were not fit to live in and a breach of clause 18 of the agreement, for the whole of the period from 1 November 2013 to 28 April 2014. 59 The Tribunal is of the view that although the landlord was aware of the problem yet failed to act, the premises were not entirely uninhabitable, as the applicant continued to reside there, notwithstanding with some discomfort and anxiety during his occupancy over a five month period. 60 The Tribunal is satisfied, however, for the reasons set out herein, that at least a part of the premises was unusable, being principally the bathroom, and that being an essential part of the residence. In all the circumstances, the Tribunal is of the view that a percentage reduction of the total rent paid is appropriate in the sum of 33% and that amount should be allowed, which is a sum of $2,170.80. 61 There will be an order accordingly for the rent to be reduced by that amount and for the respondent to pay the applicant:- 61.1 $2,170.80 for overpaid rent; and 61.2 $96.80 for the tenant's electricity disconnection fee. A McMurran General Member Civil and Administrative Tribunal of New South Wales 8 July 2014 ********** 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 September 2014