ACT CIVIL & ADMINISTRATIVE TRIBUNAL

L1 v T1 (Residential Tenancies) [2019] ACAT 16

RT 850/2017

Catchwords RESIDENTIAL TENANCIES – mould – ventilation – lessor’s responsibility – proving losses due to mould – limits on Tribunal’s jurisdiction for personal injuries

Legislation cited: Civil Law (Wrongs) Act 2002Residential Tenancies Act 1997 standard terms 54, 55, 56, 57, 93

Cases cited: Faulder v Tran [2018] ACAT 80Hadley v Baxendale (1854) 156 ER 145

List of Texts/Papers cited: Allan Anforth, Peter Christensen and Christopher Adkins

Residential Tenancies Law and Practice New South Wales (The Federation Press, 7th edn, 2017)

Tribunal: Senior Member A Anforth

Date of Orders: 31 January 2019Date of Reasons for Decision: 31 January 2019

AUSTRALIAN CAPITAL TERRITORY )CIVIL & ADMINISTRATIVE TRIBUNAL ) RT 850/2017

BETWEEN:L1

Applicant

AND:

T1Respondent

TRIBUNAL: Senior Member A Anforth

DATE: 31 January 2019

ORDER

The Tribunal orders that:

1. The respondent pay the applicant the sum of $2,605.

2. ACT Rental Bonds on behalf of the Territory is directed to release the whole of the bond ($1,560) to the applicant to be credited against the sum at Order 1.

3. The remaining balance of $1,045 is to be paid by the respondent to the applicant on or before 30 March 2019.

4. The respondent’s claims are otherwise dismissed.

5. The reasons for this decision are to be published under pseudonyms.

………………………………..Senior Member A Anforth

REASONS FOR DECISION

Summary

1. The applicant is the lessor of residential premises in the ACT and the

respondent is the tenant. The tenancy was originally entered in June 2015, and

then a second tenancy was entered on 27 May 2016 at a rent of $410 per week

for an initial fixed period of 6 months.

2. On 31 August 2017 the applicant issued a Notice to Vacate by 18 September

2017 for rent arrears, and scheduled a final inspection for the same day.

3. On 31 August 2017 the applicant also issued a Notice to Vacate for failure of

the tenant to maintain the premises. The Notice was said to have been issued

pursuant to Standard Terms 93(a)-(d) of the Schedule to the Residential

Tenancies Act 1997 (RTA). The Notice nominated cleaning as the grounds and

listed various appliances and parts of the premises.

4. On 9 October 2017 the applicant sought possession, compensation for cleaning

and damage to the premises and rent arrears. The applicant had itemised the

cleaning and repairs required in an email dated 5 October 2017. The respondent

vacated on 14 October 2017 and hence possession was no longer an issue.

The respondent said that she had not been living in the premises for more than

the past 12 months and that the applicant’s agents were aware of this fact.

It transpired that the respondent left her goods and possessions in the premises,

which she periodically visited.

5. On 9 November 2017 the respondent counter-claimed for personal injuries to

herself, a non-functioning dryer and dishwasher, and damage to her goods

caused by mould in the premises, which she subsequently quantified at

$150,000. This claim was varied from time to time and at one point was about

$500,000. The Tribunal advised the respondent that it did not have jurisdiction

to hear a claim of this magnitude and that there were other issues raised by the

personal injuries claim for her and her son. The respondent advised the Tribunal

on several occasions that she had retained solicitors to assist her to remove the

matter to the Supreme Court. The proceedings in the Tribunal were adjourned

several times to facilitate this action by the respondent. The respondent

ultimately did not commence any action in the Supreme Court and withdrew her

personal injuries claim in the Tribunal and there was no evidence of any mould-

related medical conditions.

6. This left the property damage, and lack of dryer and dishwasher claims alone.

The Tribunal made orders on several occasions for the respondent to itemise the

property loss and file the evidence of purchase price, age and second-hand

value. The respondent failed to do so, and a final opportunity was provided by

orders on 23 July 2018 which gave the respondent until 6 August 2018 to do

this. The respondent failed to comply and the tribunal queried the respondent on

28 August 2018 who said that other factors had been a higher priority for her.

On 30 August 2018, she asked for a further extension of time. The Tribunal

refused the request.

7. Notwithstanding this decision, the respondent filed material anyway.

The Tribunal will not have regard to this material.

8. For completeness, it is noted that the material filed out of time by the

respondent contains:

(a) a claim for $115,010, which is beyond the jurisdictional limit of the

Tribunal;

(b) a claim, for the first time, for a 100% rent rebate for the whole of the

tenancy period; and

(c) a claim for lost wages arising from the loss of a job said to have been

caused by an argument at work which in turn was caused by the stress of

the tenancy circumstances.

9. The respondent filed a list of goods with an asserted purchase price. There was a

receipt for the purchase of a few of goods only, and no evidence relating to the

others. There was no evidence of current second-hand value, no evidence that

the goods were actually disposed of and no corroborating statements.

10. This latest version of the respondent’s claim was consistent with the highly

emotional manner in which the whole of her case was presented and the lack of

consistency and rationality underpinning the claim.

11. The respondent did adduce evidence of the mould infestation and the

photographs corroborated this. For reasons explained below, the mould was the

applicant’s responsibility and he did not escape that responsibility by merely

asserting that the respondent should have kept the windows open.

12. There was a breach on the lessor’s part, being a failure to maintain the premises

in a reasonable state of repair, both in respect of the mould, and the dryer and

dishwater.1 It was open to the respondent to bring a claim for any personal

injuries, property damage or breach of quiet enjoyment she suffered as a

reasonably proximate cause of that breach.

13. The problem for the respondent is that she did not take the opportunity to bring

these claims in a rational and co-ordinated manner. Apart from the jurisdictional

problems, the claim for personal injury was without any evidence as were the

alleged losses of career and wages, and raised obvious causation issues.

14. The claims for property damage were backed only by assertion and scant

evidence. There were not even photographs of the furniture and clothes and

other items said to have been discarded. There was no evidence of when and

where these things were disposed of.

15. The respondent failed to address the obvious mitigation issue. She said the

mould became apparent in July 2015 but she left all of her possessions in the

unit and never removed them until they were purportedly thrown away over two

years later. There is no way of knowing when during the tenancies that the

various items actually became infected. The respondent said she bought more

clothes during this time which also became infected. It is not mitigating loss to

leave the existing property to be infected, or to bring new clothes into that

environment.

16. The respondent said that the mould issue was of such proportions in July 2015

that she barely lived in the unit; she lived with her mother or at the hospital.

Notwithstanding this, she entered a new six month tenancy in May 2016 and

remained there until October 2017. This is extraordinary in the circumstances. It

1 Residential Tenancies Act 1997 Schedule 1 standard terms 54, 55, 56 and 57; Faulder v Tran [2018] ACAT 80

was open to her to have terminated either the first or second tenancy at any time

due to the mould and certainly at any time after the effluxion of the respective

fixed terms.

17. The respondent is entitled to something for the lack of dryer and dishwasher for

over 12 months.

18. It is plain that there was a mould problem of such proportions as could and

probably did affect the respondent’s enjoyment of the property and her goods.

The failure to deal with the mould problem was a breach on the applicant’s part,

but the problem for the respondent is that:

(a) she has simply not adduced the evidence in support of her claim for

property damage;

(b) her case has evolved from one extravagant personal injuries and wage loss

claim to another, for which there is no evidence;

(c) she has varied the claim in a manner that is not permissible in terms of

procedural fairness to the applicant; and

(d) she has taken no notice of the Tribunal’s comments on the jurisdictional

limits of the Tribunal.

19. The respondent would have served her own interests better had she obtained

representation from the Tenant’s Union ACT or Canberra Community Law.

20. The applicant claimed for:

(a) replacement of keys - $255;

(b) replacement of swipe card - $120;

(c) rent - $3,229.99;

(d) repainting by AJ Grant - $600;

(e) repairs by PWC Property to re-carpet, and carry out repairs caused by

water damage, rusting and mould. The rusting extended to door handles

and curtain chains - $7,399.50; and

(f) a claim for mould remediation (to be advised).

21. The applicant produced detailed documentary evidence in support of his claims.

Items (a), (b) and (c) are justified.

22. The applicant cannot claim for damage and painting necessitated by the mould

issue. The mould is the lessor’s responsibility. The carpets had to be discarded

and the walls painted due to the mould. The fact that there were non-mould

marks on the carpet or walls caused by the tenant is irrelevant when the carpet is

being wholly discarded and the wall wholly repainted. After the replacement of

the carpet and repainting, the place would need to be cleaned again and so any

lack of cleaning on the respondent’s part is largely irrelevant.

23. The only valid part of claims (d), (e) and (f) is the damage to the cupboard and

the removal of the respondent’s rubbish and possessions left on the premises.

There is no itemisation of the quote that allows these figures to be dissected.

24. The net result is that the applicant’s claim is allowed in the sum of $3,605

(rounded) plus the costs of repair of the cupboard and rubbish removal. The

respondent is entitled to compensation for lack of the dryer and dishwasher.

History of proceedings in the Tribunal

25. On 9 October 2017 the applicant (the lessor) commenced proceedings in the

Tribunal for possession of the premises based on rent arrears of $3,229.99 as of

26 September 2017. The applicant sought possession, compensation for

cleaning and damage to the premises and rent arrears.

26. The respondent vacated the premises on 14 October 2017.

27. On 9 November 2017 the respondent (the tenant) made a counter-claim for

personal injuries to herself and damage to her goods caused by mould in the

premises.

28. On 9 November 2017 the respondent failed to appear at the Tribunal and ex-

parte orders were made in favour of the applicant. Those orders were

subsequently stayed until further notice and the matter listed for hearing on 28

November 2017.

29. On 27 November 2017 the respondent advised that her counter-claim was in the

sum of $150,000 for personal injuries and damage to goods caused by the

mould. She appended seven photographs showing a rash on her face and some

goods said to be mould affected.

30. On 28 November 2017 the respondent filed a series of emails between the

parties and a time line of events. The emails related to the efforts to arrange a

departure date for the respondent and an outgoing inspection of the premises.

The emails from the respondent were in acrimonious terms and she stated that

she had no intention of paying anything, including rent, and proposed to bring a

claim for personal injuries due to the mould.

31. The time line says that the respondent was struggling to keep the premises clean

from day one. By July 2015 the mould was apparent: it was affecting clothes,

and she suffered the first outbreak of rashes all over her body, brain fog and

muscle wastage. The washing machine and dryer did not work. The timeline

goes on to describe events in which the respondent and her son largely lived

with the respondent’s mother; the respondent suffered septic shock and organ

failure, kidney failure, damage to teeth that had to be replaced, damage to her

hair and a secondary condition of uveitis to her eyes. The respondent believed

that the mould caused some form of damage to her immune system which

caused these medical conditions. The respondent enlarged her claim to include

loss of wages, general damage, the need to prematurely access her

superannuation, health costs, content replacement, and replacement of clothes.

32. There are references to the child suffering respiratory conditions and being

hospitalised. It is not clear whether the respondent is attributing the child’s

condition to the mould in the unit.

33. On 18 December 2017 directions were made for a timetable for the parties to

file and serve their evidence including expert reports and evidence of loss of

goods and clothes.

34. On 22 December 2017 the respondent filed a five page submission. In this

submission she repeated the claim that mould caused damage to her health and

said that it also caused damage to the health of her son, as well as damage to her

goods and clothes. She said the washing machine and dryer never worked and

there was no ventilation in the premises.

35. The respondent enlarged her counter-claim again to include a claim for

harassment by the neighbouring tenants and a claim that the applicant’s agents

were harassing her for rent. She reiterated the claim that the applicant had failed

to carry out repairs to deal with the mould, failed to provide a mail box key,

attended after hours and failed to provide reverse cycle air conditioning.

36. On 8 February 2018 the respondent filed a report from Protect Plus dealing with

mould. The report found the walls, ceilings and carpets to be damp with high

levels of mould. The cause was mainly a lack of ventilation in the unit.

37. The matter was listed before the Tribunal on 9 February 2018. Ms Russo and

Mr Griffith (real estate agents) appeared for the applicant and the respondent

appeared in person. The Tribunal pointed out the obvious jurisdictional issues in

this case, namely:

(a) the Tribunal’s monetary limit is $25,000 (at this point the respondent’s

claim was open ended but of the order of $500,000);

(b) a personal injuries claim requires compliance with the Civil Law

(Wrongs) Act 2002 which had not occurred in this case;

(c) a claim for personal injuries of the respondent requires evidence of

diagnosis and causation for which there was none as the evidence

presently stood; and

(d) the respondent’s son is not a party to the tenancy agreement and so any

claim for injuries to him would have to be separate proceedings in tort.

38. The respondent said that she had retained solicitors for the personal injury

matter. The Tribunal pointed out that the cause of action could not be split

between the mould causing personal injuries and the mould causing property

damage. It is the same cause of action in contract and in tort and the claims

would have to be run together.

39. The matter was adjourned with a direction that the respondent advise by

2 March 2018 whether the matter was going to be removed to the Supreme

Court or Magistrates Court.

40. On 14 March 2018 the respondent advised by email that she was intending to

commence her claim in the Supreme Court and on this basis sought an

adjournment of the hearing in the tribunal. Directions were made that the

respondent have her solicitor present on 6 April 2018 to confirm the above.

41. On 5 April 2018 the respondent filed a set of clinical notes from Canberra

Hospital. The clinical notes show an attendance in 2017 for an infected finger

from a laceration and anxiety. There is a report from a dermatologist that

referred to possible psoriasis; and a report from a haematologist that referred to

an earlier admission for E Coli septicaemia. There is a record of a history of

skin rash for many years, chronic hepatitis C, and blackouts following a car

accident. There was no reference to mould and no evidence of any immune

system failure due to mould or otherwise.

42. On 6 April 2018 there was no appearance by the respondent’s solicitors. The

respondent advised that Maurice Blackburn were in the process of obtaining

evidence in support of the intended Supreme Court action. The matter was

adjourned again to provide that time.

43. On 4 May 2018 a differently constituted Tribunal made orders for the parties to

file and serve final evidence and listed the matter for hearing on 3 July 2018.

44. On 3 July 2018 Mr Protas, real estate agent, appeared for the applicant and there

was no appearance by the respondent. The matter was adjourned for directions

only to 23 July 2018.

45. On 23 July 2018 the respondent filed a further statement which repeated some

of the earlier content. In addition the respondent sought compensation for loss

of her house through her inability to pay her mortgage and loss of her career.

The further figure of $100,000 was mentioned.

46. On 23 July 2018 Mr Protas appeared for the applicant and the respondent

appeared in person. The respondent informed the Tribunal that she abandoned

the personal injuries claim and was only pressing the property damage claim.

The Tribunal explained that any decision of the Tribunal on the property

damage claim would necessarily have to adjudicate on the mould issue and this

finding by the Tribunal may raise estoppels in respect of any attempt by the

respondent to later commence a personal injuries claim based on the mould

issue. The respondent said that she understood.

47. The respondent had still not served her evidence relating to the identity of the

damaged goods, their age, their cost and their second-hand value. The Tribunal

made orders for the respondent to file this evidence by 6 August 2018. Orders

were made for the applicant to file its evidence in reply after which the Tribunal

would proceed to a decision on the papers.

48. The respondent did not file her evidence of the property damage and the tribunal

emailed her about the issue on 28 August 2018. The respondent sought an

extension to 3 September 2018. The applicant objected to this extension.

49. The Tribunal ruled in chambers that the extension would not be granted.

50. On 12 September 2018 the applicant filed a set of documents that contained

documents previously filed as well as the invoices in support of his claim for

property damage by the respondent. This claim is set out in paragraph 20 above.

51. The documents filed by the applicant included:

(a) copies of many Notices to Remedy showing rent arrears from the

beginning of the tenancy in 2015;

(b) the ingoing condition report from June 2015 with photographs which

showed the unit to be in good repair but with some markings on the walls

and some stains on the carpets;

(c) periodic inspection reports with photographs showing areas of cleaning

and repair required;

(d) correspondence attempting to arrange inspections indicating the absence

of the respondent and difficulties contacting her;

(e) correspondence relating to the repair and replacement of the dryer and

dishwasher in which the respondent asserts that she has not had a working

dryer or washing machine for 12 months and that she relied upon her

mother;

(f) correspondence concerning problems with a key and a replacement key;

(g) photographs taken at the end of the tenancy and before the applicant’s

cleaning. The photographs showed extensive mould on the walls, carpets

and other places. There were some marks on the walls and carpets that

were not mould and there was some apparent damage to a cupboard. The

photographs showed rubbish, some personal effects and cleaning products

left behind by the respondent;

(h) a quote from PWC Property Works to recarpet, carry out repairs caused

by water damage, rusting and mould. The rusting extended to door

handles and curtain chains;

(i) a quote from AJ Grant for painting the unit; and

(j) a quote from Class Locksmith for replacement of a key not returned by

the respondent.

52. The applicant argued that the mould problem was caused by the respondent

failing to keep the premises properly aired.

Consideration of the issues

53. The expert report is clear that ventilation was the cause of the dampness and

mould. This is the lessor’s responsibility and it is not solved by just instructing

the tenant to keep her windows open.2

54. The lessor was in breach of his duty to provide and maintain the premises in a

reasonable state of repair.3

2 Allan Anforth, Peter Christensen and Christopher Adkins Residential Tenancies Law and Practice New South Wales (The Federation Press, 7th edn, 2017) [2.51.8] and [2.63.8]

3 RTA Schedule 1 standard terms 54, 55, 56, 57; Faulder v Tran [2018] ACAT 80

55. The lessor was also in breach of his duty to provide and maintain the dryer and

dishwasher in a reasonable state of repair.

56. Had the respondent been able to adduce evidence of loss of property caused by

mould infection, and subject to the respondent’s duty to mitigate her losses, the

applicant would have been liable for such losses. However, the respondent was

not able to do so and accordingly that part of her claim is dismissed.

57. There are serious mitigation failure issues in this case discussed in the summary

above. These failures are of such dimensions as to cause concerns about the

respondent’s veracity and credibility.

58. The respondent’s claim of loss of income and career by reason of being sacked

following an argument at work is dismissed. There is no evidence at all of the

event or that the argument was caused by the respondent’s adverse state of mind

induced by the stress of the tenancy. Even if there were such evidence the loss

lacks the degree of proximity to the breach required for damages under the

principle in Hadley v Baxendale (1854) 156 ER 145.

59. The same applies to the respondent’s claims for losses arising from early access

to superannuation and mortgage fees on her own home.

60. For the loss of dryer and dishwasher, the Tribunal allows the respondent a sum

of $1,000, plus an amount equivalent to the costs incurred by the applicant in

repairing the cupboard damaged by the respondent and removing the rubbish

left by the respondent.

61. The applicant has made out its case for rent arrears, replacement of keys,

replacement of swipe card, repair of cupboard and removal of rubbish. After

setting off the amount allowed to the respondent immediately above this comes

to $2,605.

62. The applicant’s claims for carpets and painting due to a combination of the

mould and damage caused by the respondent is disallowed for the reasons set

out in paragraph 22 above.

63. ACT Rental Bonds holds the sum of $1,560 which is to be released in whole to

the applicant. The balance of $1,045 is to be paid by the respondent to the

applicant on or before 30 March 2019.

………………………………..

Senior Member A Anforth

HEARING DETAILS

FILE NUMBER: RT 850/2017

PARTIES, APPLICANT: L1

PARTIES, RESPONDENT: T1

COUNSEL APPEARING, APPLICANT N/A

COUNSEL APPEARING, RESPONDENT N/A

SOLICITORS FOR APPLICANT N/A

SOLICITORS FOR RESPONDENT N/A

TRIBUNAL MEMBERS: Senior Member A Anforth

DATES OF HEARING: 9 February 2018

3 July 2018