Raats v Zein [2016] NSWCATCD 62

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Raats v Zein [2016] NSWCATCD 62 Hearing dates: 10 August 2016 Date of orders: 07 September 2016 Decision date: 07 September 2016 Jurisdiction: Consumer and Commercial Division Before: P French, General Member Decision: 1. Mohsen Zein c/- Fynrush Pty Ltd trading as Di Jones Thornleigh of Unit 17A, 4 Central Avenue, Thornleigh NSW 2120 is to pay Rayno and Monique Raats of Townhouse 1/17 Yardley Avenue, Waitara, NSW, 2077 the sum of $1,763.08 immediately.

2. The Application is otherwise dismissed. Catchwords: RESIDENTIAL TENANCY – claim for compensation for removal costs – premises uninhabitable Legislation Cited: Residential Tenancies Act 2010 Residential Tenancies Regulation 2010 Civil and Administrative Tribunal Act 2013 Cases Cited: De Soleil v Palmhide P/L [2010] NSWCTTT 464 Hadley v Baxendale [1854] EngR 296 Hampel v South Australian Housing Trust [2007] SADC 64 Menashi v Ly [1997] NSWRT 162 Proudfoot v Hart (1890) 25 QBD 420 Roberts v Bell [2000] NSWRT 6 Stuart v Colley [2005] NSWCTTT 520 Category: Principal judgment Parties: Rayno and Monique Raats (Applicants) Mohsen Zein (Respondent) File Number(s): RT 16/34536 Publication restriction: Nil

REASONS FOR DECISION 1. This is an application by Rayno and Monique Raats (the tenants) for an Order from the Tribunal pursuant to sections 187 and 190 of the Residential Tenancies Act 2010 (RT Act) that will require Mohsen Zein (the landlord) to pay them the sum of $1,763.08 in compensation for the costs they incurred in moving from residential premises they rented from the landlord which they claim were uninhabitable from the commencement of the tenancy due to a dangerous mould infestation. The tenants also claim compensation for the costs of this application to the Tribunal. This application was made to the Tribunal on 28 July 2016 (the application). 2. For reasons that are set out following, the Tribunal has determined that the tenants are entitled to compensation for the costs they incurred in relocating from the residential premises because those premises were uninhabitable from the commencement of the tenancy due to a dangerous mould infestation. This constitutes a breach by the landlord of clause 18.1 of the Residential Tenancy Agreement (RTA) and section 52(1) of the RT Act which required the landlord, respectively, to 'make sure that the residential premises are reasonable clean and fit to live in' at the commencement of the tenancy, and to 'provide the residential premises in a reasonable state of cleanliness and fit for habitation by the tenant'. The tenants are not entitled to claim compensation for the costs of their application to the Tribunal because this is a legal cost, being a cost incidental to the proceedings, and the ordinary rule prescribed in section 60 of the Civil and Administrative Tribunal Act 2013 (NCAT Act) is that each party is to pay its own costs of a proceeding.