ACT CIVIL & ADMINISTRATIVE TRIBUNAL

KOESMARNO v MUTIS (Appeal) [2016] ACAT 126

AA 10/2016 (RT 743/2015)

Catchwords: APPEAL – residential tenancies – compensation – de novo hearing

Legislation: ACT Civil and Administrative Tribunal Act 2008 ss 79, 82Residential Tenancies Act 1997 s 83, standard terms clauses 26, 54, 55, 56, 57, 59, 62

Cases Cited: Koesmarno v Mutis [2015] ACAT 89Leigo v Teacher Housing Authority of NSW [2007] NSWCTTT 468Prest v Watts [2009] NSWCTTT 509Read v Ritossa [2004] NSWCTTT 682Vinensig v Tareha [2007] NSWCTTT 36Vitkind v NSW Land and Housing Corporation (2010) NSWCTTT 107

Texts/Papers Cited: Anforth, A et al, Residential Tenancies Law and Practice New

South Wales (Federation Press, 2011)

Tribunal: Acting Presidential Member R Orr QC

Date of Orders: 21 November 2016Date of Reasons for Decision: 21 November 2016

ACT CIVIL & ADMINISTRATIVE TRIBUNAL AA 10/2016

BETWEEN:

HARIANTO KOESMARNOAppellant/Lessor

AND:

FRANCISCO MUTISRespondent/Tenant

TRIBUNAL: Acting Presidential Member R Orr QC

DATE: 21 November 2016

ORDERS

The Tribunal orders that:

1. The order made by the original tribunal on 22 December 2015 is set aside.

2. Harianto Koesmarno, the lessor, appellant and original applicant, pay Francisco

Mutis, the tenant and respondent, $1,599 within 28 days.

…………………………………President L Crebbin

delivered for and on behalf of the Tribunal

REASONS FOR DECISION

Introduction

1. On 28 April 2011 the appellant and original applicant, Harianto Koesmarno

(Mr Koesmarno or lessor), granted a residential tenancy over premises in

Kaleen (premises) to Francisco Mutis (Mr Mutis or tenant) and another

(residential tenancy).

2. By application dated 29 July 2015 the lessor brought proceedings in the tribunal

for termination of the tenancy and rent arrears and water consumption. The

tenant in response made a counterclaim or set off concerning failure to repair

the property and other matters, in particular in relation to the stove, fences,

mould and work done by the tenant. Mr Mutis vacated the premises on about

October 2015

3. The proceedings were originally heard on 1 October 2015 and by a decision

dated 22 December 2015 the original tribunal ordered that the sum of $8,681.00

was payable by Mr Koesmarno, the lessor, to Mr Mutis, the tenant.

4. The lessor appealed this decision principally on the basis that the decision and

the order did not take into account the rent arrears and water consumption due

to the lessor by the tenant. The tribunal determined that the appeal would be

heard as a new application under section 82(a) of the ACT Civil and

Administrative Tribunal Act 2008 (ACAT Act). In this appeal the lessor in

addition argued that the claims of the tenant for failure to repair and other

matters should not be upheld. The tenant argued that some of the amounts

allowed by the original tribunal for failure to repair and other matters were

unreasonably low and should be increased.

Summary of Tribunal decision

5. This decision finds that there is rent of $16,585 and water rates of $2205, a total

of $18,790, due by the tenant to the lessor.

6. The tenant’s claim, found by the original tribunal, for damages for failure to

provide a functioning stove for a period of over four years is accepted, and the

amount of compensation for this is increased to $12,750.

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7. The tenant’s other claims, found by the original tribunal, are upheld: for

veterinary bills of $617 due to poor fencing; for mould damage of $2,500

caused by the state of the house; and for reimbursement for repairs done by the

tenant of $3,564. Further, the amount of the lessor’s claim for water rates due is

reduced by $958 because this amount appears to have been caused by leaking

plumbing in the house. This gives a total counterclaim or set-off of $20,389.

8. This means there is an amount of $1,599 to be paid by Mr Koesmarno, the

lessor, to Mr Mutis, the tenant. The order of the original tribunal is set aside and

an order for this amount made.

Background

9. Under the residential tenancy (the terms of which are set out in exhibit A3), the

initial term was for 12 months, and on conclusion of that fixed term a periodic

tenancy was “accepted with notice to vacate being given three weeks in writing

to the agent” (item 8). The rent at commencement was $430 per week, payable

at the rate of $1868 per calendar month (item 9). The residential tenancy was

subject to the Standard Residential Tenancy Terms (Standard Terms) set out in

the Residential Tenancies Act 1997 (ACT) (Residential Tenancies Act). Clause

26(1) provided that the tenant must pay the rent on time.

10. Clause 54(1) of the Standard Terms provided that at the start of the tenancy, the

lessor must ensure that the premises, including fittings and appliances (unless

excluded from the tenancy agreement, and there were no exclusions), are (a) fit

for habitation; and (b) reasonably clean; and (c) in a reasonable state of repair;

and (d) reasonably secure.

11. Clauses 55-57 of those Standard Terms stated:

55(1) The lessor must maintain the premises in a reasonable state of repair having regard to their condition at the commencement of the Tenancy Agreement.

(2) The tenant must notify the lessor of any need for repairs.

(3) This section does not require the tenant to notify the lessor about anything that an ordinary tenant would reasonably be expected to do, for example, changing a light globe or fuse.

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56. The lessor is not obliged to repair damage caused by the negligence or willful act of the tenant.

57. Subject to clause 55, the lessor must make repairs, other than urgent repairs, within 4 weeks of being notified of the need for the repairs (unless otherwise agreed).

12. Under clause 59, the tenant must notify the lessor of the need for urgent repairs

as soon as practicable, and the lessor must carry out those repairs as soon as

necessary having regard to the nature of the problem. ‘Urgent repairs’ are

specified in clause 60. If the lessor cannot be contacted, or fails to effect urgent

repairs within a reasonable time, the tenant may arrange for urgent repairs up to

a certain value (clause 61), but these must be made by the qualified tradesperson

nominated by the lessor. The lessor had nominated such tradespersons. If the

repairs were so arranged, the lessor was liable for the cost (clause 62).

13. The residential tenancy also contained some additional clauses which included

that the owner did give consent for the tenants to keep one pet on the premises.

Explanatory term 26 provided that such pets must remain outside at all times.

14. Section 83 of the Residential Tenancies Act provides that the tribunal may,

without limiting the other orders it may make, make the following orders in

relation to an application about a tenancy dispute:

…

(b) an order requiring performance of a residential tenancy agreement or occupancy agreement;

(c) an order requiring the payment of an amount to the Territory or a person;

(d) an order requiring the payment of compensation for loss of rentor any other loss caused by the breach of a residential tenancyagreement or occupancy agreement;

…

(i) an order terminating a residential tenancy agreement oroccupancy agreement and granting vacant possession of therelevant premises to the applicant for the order;

…

15. By application dated 29 July 2015 the lessor brought proceedings in the tribunal

for “termination of the tenancy – vacant possession” and “rent arrears and water

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consumption”. The amount claimed was $12,165 for rent arrears and $2205 for

water consumption (in this decision, cents have been rounded to the nearest

dollar). The tenant in response made a counterclaim or set-off concerning

failure to repair the property and other matters. This was a total claim for

$24,965, which included amounts for failure to repair ($20,800); water leaks

leading to high water bills ($1705); insecure fencing leading to injury of his dog

(veterinary fees of $1,071); urgent plumbing repairs ($638); mould damage to

bed and furniture; and repairs not reimbursed ($750).

16. The proceedings were originally heard on 1 October 2015. Mr Mutis vacated the

premises in October 2015 after the hearing. By a decision dated

22 December 2015, Koesmarno v Mutis [2015] ACAT 89, the original tribunal

ordered that the sum of $8,681 was payable by the lessor to the tenant. This was

made up of amounts for veterinary bills ($617); compensation for non-fully

functional stove ($2,000); compensation for mould damage ($2,500); and the

tenant’s account for work done to rectify the property ($3,564) (at [36]). The

tribunal stated at [8] that “the tenant was no longer in arrears with his rent or his

water usage charges,” and this issue was not otherwise dealt with.

17. A party to an original application in the tribunal may appeal the decision to the

tribunal on a question of fact or law under section 79 of the ACAT Act. The

lessor appealed this decision principally on the basis that the decision and the

order did not take into account the rent arrears and water consumption due to

the lessor. The lessor stated in the application for appeal that there was an error

in the decision and that the “tenants need to pay outstanding rent $16,585 &

water $2,205.16”. A claim was also made for damages to the house at the time it

was vacated, but this was not pursued.1 The lessor also indicated that the claims

of the tenant for failure to repair and other matters should not be upheld. The

tenant indicated that some of the amounts allowed by the original tribunal for

failure to repair and other matters were unreasonably low. A claim by the tenant

in relation to the bond was not pursued.2 As noted, the tribunal determined that

1 Order of the tribunal dated 25 July 20162 Order of the tribunal dated 25 July 2016

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the appeal would be heard as a new application under section 82(a) of the

ACAT Act.3

Hearing

18. The appeal was heard on 25 July and 2 September 2016.

19. The Tribunal indicated that it would have regard to the transcript of the original

hearing on 1 October 2015, and the decision of the tribunal on 22 December

2015.

20. The lessor (and appellant/original applicant) relied on a number of documents

identified at the hearing on 25 July 2016: a chronology and attached documents

filed on 27 April 2016 (exhibit A1), a bundle of documents in relation to the

rent and water charges owing filed on 31 March 2016 (exhibit A2), a bundle of

additional documents relied on in the original hearing filed on 23 March 2016

(exhibit A3), and a letter from Sadil Quinlan Properties dated 10 July 2016

(exhibit A4). Exhibit A3 contains a letter from LJ Hooker which makes some

statements and submissions, and a document which sets out in more detail a

response by Mr Koesmarno to the claims by Mr Mutis. At the hearing on 2

September 2016 further bundles of documents were tendered by the lessor

(exhibits A4 and A5). Clearer copies of routine inspection reports of the

property were also treated as evidence (exhibit A7), as were original photos

tendered in the original proceedings (exhibit A8).

21. On the application of Mr Koesmarno a summons was issued to LJ Hooker,

Canberra City to provide documents in relation to the residential tenancy. A

folder of documents was produced, which was tendered as evidence (exhibit

A6).

22. The tenant (respondent) relied on a chronology and attached documents (exhibit

R1), and a bundle of additional documents relied on in the original hearing

(exhibit R2) which were tendered at the hearing on 25 July 2016. At the hearing

on 2 September 2016, he also tendered an email dated 8 August 2016 (exhibit

R3), which contained his statement.

3 Order of the tribunal dated 23 May 2016

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Rent and water

23. In the application for appeal, Mr Koesmarno stated that the tenants need to pay

outstanding rent of $16,585 and water rates of $2205, a total of $18,790.

Throughout these proceedings various amounts have been proposed for this

claim. Generally Mr Mutis agreed that some amount for rent and water rates

was due, and in these proceedings indicated that he accepted the amount

specified in the application for appeal.4 The finding of the original tribunal was

in error in this respect. Determination of this appeal needs to take account of

this amount of $18,790 due by the tenant to the lessor.

Stove

24. In his response to the claim, Mr Mutis stated that “the lessor has failed to do

repairs on the property since the beginning of the lease on 28 th April 2011

despite numerous written and oral requests to LJ Hooker”. He claimed a

reduction in rent of 20% ($400) for 52 months, a total of $20,800.

25. A key element of this claim concerned the stove. Mr Mutis said that the issue of

the faulty stove had been discussed with Mr Koesmarno even before the lease

had been entered into (exhibit R3). The documents provided by the agents

included an email from Marlene Barclay of LJ Hooker, the agent for

Mr Koesmarno, to Mr Koesmarno dated 17 May 2011, that is shortly after the

lease was entered into. It stated “the tenants have requested some maintenance

to be arranged” and noted that the tenants “have cleaned up a fair bit and want

to take pride in their home and continue care.” In a paragraph which begins

“maintenance which needs attending to” Ms Barclay wrote:

5. Two hotplates and control nobs x 2 do not work – needs electrician

6. Oven – is a serious OHS issue, have an electrician look at it and bring it to code.

26. Mr Mutis stated that the problems with the stove were raised with the lessor and

the agent “countless times over the period 2011-2015.” This is supported by

documents provided to the Tribunal. It appears the agent began investigating

replacement of the stove in 2012.5 A number of routine inspection reports were 4 Transcript of proceedings 2 September 2016, pages 59-605 Exhibit A6, Action and conversation diary, entry with start date 27

July 2013 which states “please quote for new gas oven”, and was

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produced to the Tribunal. The report of May 2012 stated “gas elements x 2 not

working; fan in oven not functioning properly”. There is also a comment that

the tenant is “looking after the place well” and it is noted that the house and

grounds are satisfactory.6

27. The report of 1 November 2012 contained a comment: “cooktop – plumber to

still quote”. There is also a comment to the tenant “all good thank you” and it is

noted that the house and grounds are satisfactory. Advice to the owner is

recorded as “handyman still to come around.”7

28. Mr Mutis stated that further the glass stove top was broken in 2013.8 In the

invoice for repairs dated 24 April 2014 (in exhibit R1), discussed further below,

Mr Mutis commented that “I would like to bring up that for years now I have

been asking for repairs to be done … Also still waiting on new oven as for two

years + now only two stove top dials work and oven door does not close

properly causing wasted electricity ...”

29. It appears that a quote to have the stove replaced was obtained dated

16 July 2014 but this was not done (exhibit A6). In an email from Mr Mutis to

LJ Hooker dated 4 May 2015 (in exhibit R1) Mr Mutis stated that although

some repairs had been done that the electrician “is yet to replace springs in door

heat still escapes, gas top is still broken glass top, faulty burners and dials.” The

stove top was apparently replaced around July 2015 (exhibit R3), about four

years and three months after it was reported broken.9

30. It is clear that the stove did not function properly from the commencement of

the lease in April 2011 until July 2015, and that the lessor and the agent knew of

this from the commencement of the lease, and were reminded regularly. This is

a breach of clause 54(1) of the Standard Terms which provides that at the start

of the tenancy, the lessor must ensure that the premises, including fittings and

appliances, are in a reasonable state of repair. It is also a breach of clauses 55

apparently created on 1 August 2012; transcript of proceedings 2 September 2016, page 68

6 Exhibit A77 Exhibit A78 Exhibit R39 Transcript of proceedings 2 September 2016, page 32, evidence of

Ms Lawrence

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and 57 which provide that the lessor must maintain the premises in a reasonable

state of repair having regard to their condition at the commencement of the

tenancy agreement, and make repairs within four weeks of being notified. The

fact that the stove was not operating properly at the start of the lease in breach

of clause 54 is not an excuse for failing to repair it under clause 55.

31. The lessor raised a range of matters in relation to the tenant’s claims generally,

including for the failure to repair the stove, in exhibit A3, pages 2-5. These were

first that the tenant was in breach of the lease in relation of payment of rent, and

“after he failed to pay rent on time, reported various issues”. The failure to pay

rent does not relieve the lessor of the obligation to ensure the premises are in a

reasonable state of repair, maintain the premises in a reasonable state of repair,

and make repairs within four weeks of being notified of the need for the repairs

(unless otherwise agreed). It is clear the tenant raised issues in relation to the

stove from the beginning of the lease and regularly after that.

32. Second that Mr Mutis had been an “illegal occupant” of the premises before the

residential tenancy. Even if true, this is irrelevant to the claim under the

residential tenancy. Third, that there had been “illegal use of the property” prior

to the residential tenancy; this is also irrelevant to the claim. The lessor referred

to “rumours” and “smells” but these are not evidence of illegal use.

33. Fourth, that there had been “unauthorised work on the property”. This is also

irrelevant to the claim in relation to the stove. There is no allegation that

unauthorised work was carried out on the stove. The issue of unauthorised work

is discussed further below.

34. Fifth, it is said that there were problems getting access to the premises to do

some of the things the tenant requested, and that he was not co-operative.10

There was some evidence that it was difficult for repairers to access the

premises at some times. The quotation for Gem Maintenance dated 24

September 2012 stated “please note: quote delayed due to the tenant’s busy

schedule” (exhibit A6). However a quote was provided and the repairs

undertaken (see invoice dated 24 November 2012 in exhibit A6). Also, an email

10 See also transcript of proceedings 2 September 2016, pages 90-91

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from Chesters Plumbing dated 5 December 2012 in relation to the oven stated

“we have left countless messages and attended twice but the tenant did not show

up both times” (exhibit A6). However the evidence in these proceedings shows

that regular inspections were able to be undertaken by the agents, a number of

quotes were able to be given and a number of repairs undertaken. A quote from

Landmark Plumbing dated 16 July 2014 begins “attended site to quote to have

the stove top replaced as the glass itself has smashed. Please be aware that this

cooktop is a very rare size and there is nothing our suppliers have to match it”

(exhibit A6). There is no reference to access problems. Some difficulty in

gaining access may explain a short delay in repair, but not one of over four

years.

35. Another issue in relation to delay seems to relate to insurance. In an email dated

9 May 2015 Mr Koesmarno replied to his agents, who had passed on issues

raised by Mr Mutis, and stated “please also explore some items which are

covered by insurance … you will need to get approval from insurance prior

commencing work.” And an email of 28 May 2015 stated “please check

insurance first” (exhibit A6). It is noted that delays caused by the landlord’s

insurers are no defence to a breach of the duty to repair.11

36. Sixth, it is said that the claim for the stove, and others, is a “false claim” for

which “no evidence of financial loss has been provided.” On the evidence

before this Tribunal the claim in relation to the stove is not a false one.

37. The lessor also suggested that he was not aware of the position of the stove.12

The email of 17 May 2011 noted at [25] above was to Mr Koesmarno. It is

reasonable to assume that the regular inspection reports were provided to him.

These drew Mr Koesmarno’s attention to the problems with the stove. Even if

they had not done so, notice to the lessor’s agent is sufficient to give rise to the

duty to repair.

11 Residential Tenancies Law and Practice New South Wales by Allan Anforth, Peter Christensen and Bill Taylor (5th edition, 2011), at [2.63.1], noting Bowen v Druett (2002) (RT 02/52421)

12 Transcript of proceedings 2 September 2016, page 90

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38. The Tribunal is therefore of the view that the lessor breached his obligations to

ensure that the premises, including fittings and appliances, were in a reasonable

state of repair at the commencement of the residential tenancy (clause 54(1) of

the Standard Terms), to maintain the premises in a reasonable state of repair

(clause 55(1)), and to make repairs within four weeks of being notified of the

need for the repairs (clause 57), in relation to the stove. A stove is an important

part of the premises subject to the residential tenancy. The evidence is that the

stove in the premises was from the beginning of the residential tenancy not

working properly; that the agent and lessor were notified of this at the

commencement of the lease and regularly from then on; and that it took over 4

years to repair the stove. The original tribunal’s decision that there was a breach

of the residential tenancy in relation to the stove is upheld; there is no error in

this finding.

39. Mr Mutis is entitled to damages for this breach. The original tribunal decision

assessed the damages for this at $2,000 (at [27]). Counsel for Mr Mutis

submitted that this was “manifestly unreasonable” and suggested that up to

$20,000 was the appropriate amount of damages.13 He referred to a range of

cases summarised in Residential Tenancies Law and Practice New South Wales

by Allan Anforth, Peter Christensen and Bill Taylor (5th edition, 2011), pages

280 and following. As the original tribunal noted there is a wide range in the

determinations summarised there. In Vinensig v Tareha [2007] NSWCTTT 36,

$5 per day for 68 days was awarded for loss of use of an element of a stove;

counsel for the respondent argued that applied here, where at least two elements

were not working, this approach would provide an amount of at least $12,000.

In Leigo v Teacher Housing Authority of NSW [2007] NSWCTTT 468, $1,000

was awarded for inconvenience in not having a stove to cook on for a family for

a month; counsel argued that applied here this approach would provide an

amount of $48,000. In Prest v Watts [2009] NSWCTTT 509, $350 was awarded

for lack of use of a stove for 14 weeks; counsel argued that applied here this

approach would provide an amount of $5,600.14

13 Transcript of proceedings 2 September 2016, page 6314 Transcript of proceedings 2 September 2016, pages 69-70

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40. In light of these comparators, the Tribunal agrees that $2,000 was unreasonable,

and indeed “manifestly unreasonable,” and involved an error. Here there was a

significant problem from the beginning of the residential tenancy, extensive

delay in repairing, notwithstanding repeated requests, and a suggestion by the

agent that the stove was in fact an occupational a health and safety issue.

However, it is noted that the tenant did have some use of the stove. The

Tribunal awards an amount in the middle range of the cases mentioned of

$3,000 per year, a total of $12,750.

Fences

41. In the email to Mr Koesmarno dated 17 May 2011, noted above at [25], Ms

Barclay wrote “fencing – it has fallen apart and does need attending to” and

“fencing is poor”. The routine inspection report of May 2012 stated next to the

subject “fences/roller door” the words “need repairing”. The report of

1 November 2012 states “old missing palings” (exhibit A7).

42. In the email from Mr Mutis to LJ Hooker dated 4 May 2015 (in exhibit R1),

Mr Mutis noted that “the fence is still a major issue as my dog ended up in the

pound again due to rotten palings falling off, I have again fixed new wood to

reinforce but this is proving to be pointless with the amount of fence that is

rotted and broken”.

43. Mr Mutis provided invoices from Kaleen Veterinary Hospital for treatment of

his dog, one dated 12 March 2013 for an amount of $473 and another dated

20 May 2015 for $144 (in exhibit R1). An invoice from before the period of the

residential tenancy is not relevant in these proceedings.

44. The original tribunal held that the general issue of the fences was vexed, but

found the veterinary expenses incurred were a direct consequence of the poor

condition of the fence and should be the subject of a compensation order (at

[21]-[24]). This Tribunal agrees for the same reasons and sees no error in this

aspect of the decision. The amount of the two accounts is $617, which should be

paid by the lessor to the tenant. The account for the tenant’s repair of the fences

is discussed further below.

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45. The tenant also argued he was entitled to have fencing in good repair, and

referred to one decision in NSW, Read v Ritossa [2004] NSWCTTT 682, where

an amount of $1,000 was awarded as general damages for fences around the

property being left in a fallen down state for periods totaling 12 months, in the

context of multiple other claims.15 But like the original tribunal, this Tribunal

does not think that there is sufficient basis for awarding general damages for

this claim.

Mould

46. The email of 17 May 2011 noted above at [25] stated:

1. Bathroom, concern for water damage – rotting timber on corner of shower floor recess – this will require immediate attention

…

Bathroom tiling is moulding, timber rotting, and knocking on the tile walls, sounds very hollow - as mentioned earlier needs serious attention.

47. This suggests an early concern with mould issues in the premises. In the original

proceedings Mr Mutis stated that he “always brought up the mould issues.”16 He

also stated in these proceedings that he discussed mould issues during the

routine inspection on 1 November 2012, though this is not noted on the report.

He said this was raised on other occasions and that the agent’s advice was to

keep cleaning the walls and to ventilate more by leaving the windows open. He

said that he indicated that he was doing this, but with no permanent effect. He

suggested that the faulty toilet, kitchen plumbing and roofing may have

contributed to this problem (exhibit R3). An email from Mr Mutis to the agent,

the contents of which were passed onto Mr Koesmarno, dated 4 May 2015

stated that “roof leak tiles need re-sealing sacking under tiles torn this is causing

mould issues again” and “faulty toilet plumbing” and “dripping taps even after

repairing washers several times” (exhibits R1 and A6). Apparently the plumbing

was addressed in May 2015 and the roofing in August 2015.17

15 Transcript of proceedings 2 September 2016, page 7616 Transcript of proceedings 1 October 2015, page 4417 Exhibit A6

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48. Mr Mutis provided a Mould Assessment Report/Quotation by PureProtect

Macarthur dated 17 September 2015 (mould assessment report). This

indicated an internal average humidity of 66% in the house, and noted that

where indoor humidity exceeds 60% there is sufficient moisture in the air for

mould to develop. Medium to high levels of mould were detected in some

rooms. It is stated that “the combination of previous water ingress (leaks) failure

to extract water vapour efficiently from the wet areas and elevated humidity

levels are the key contributing factors to the mould and damp development”.

The report noted that mould produces health effects. A range of measures were

suggested including replacing fans and installing new vents, mould removal,

structural drying and application of mould guard (at a quoted cost of $1,178),

and installing a home humidifier (in exhibit R1).

49. The general matters raised by Mr Koesmarno and discussed at [31] to [37]

above are also not relevant to this claim. Mr Koesmarno suggested the

dampness was linked to “illegal use of the property” prior to the lease; this is

irrelevant to the claim. There was no evidence of illegal use in the period of the

lease.

50. The statement of Mr Koesmarno in exhibit A3 has a heading ‘Mould’ but most

of the discussion under this seems to concern the repairs carried out by

Mr Mutis. He does say that Mr Mutis “failed to identify the major problem of

mould which was caused by the cracking tile roof; but tried to do the internal

patching instead of doing the correct procedures”; “if he engaged a roofer to

identify the problem, this mould would have been stopped”; “we need to get

qualified tradesmen rather than allowing tenant to do repair”. The issue of the

tenant’s work account is noted below. Whatever work the tenant did, the claim

in relation to damp is essentially a claim that the lessor failed to conduct timely

repair as required by clauses 55 and 57 of the Standard Terms.

51. Ms Weaver from LJ Hooker in her evidence stated that in the ACT “we do have

severe mould issues – whether they’re new or old property … I do manage a

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complex which is only a couple of years old but also experienced bad mould

build-up … tenants should be ventilating”.18

52. Mr Koesmarno also provided a report dated 10 July 2016 from Sadil Quinlan,

who have managed the property since October 2015, and they stated that “we

also note there has been no mould issues at the property since we have managed

it” (exhibit A9). Mr Koesmarno argued that this suggested that the habits of the

particular tenants under this residential tenancy may have contributed to these

problems.19 It may also be that the repairs eventually undertaken reduced the

problem for the current tenants.

53. The original tribunal found that the tenant made reasonable attempts to bring the

issue of mould to the agent’s attention, and that the agent and lessor did little to

mitigate the issue, and that the mould assessment report suggested that the

mould was caused by the lessor’s failure to conduct timely repairs. This

Tribunal agrees that the lessor has breached his obligations to maintain the

premises in a reasonable state of repair (clause 55(1)), and make repairs within

four weeks of being notified of the need for the repairs to the plumbing and roof

(clause 57), and that these problems had an impact on the mould. Mr Mutis is

entitled to damages for this breach.

54. The original tribunal made an award of $2,500 in compensation to the tenant

(paragraphs [29] – [32]). Counsel for the tenant argued that this should be

increased to $5,000, on the basis of a range of comparative cases, or even as

much as $20,000.20 In Libner and Armour v McBride (2010) NSWCTTT 166 a

rent reduction of $70 per week was made for extensive mould infestation which

reduced the tenant’s use and was not resolved for the whole tenancy. It was

argued this would equate to $14,000 in this case. In Vitkind v NSW Land and

Housing Corporation (2010) NSWCTTT 107 an amount of $2,500 was awarded

for six years of mould problems.

18 Transcript of proceedings 2 September 2016, page 41, evidence of Ms Weaver

19 Transcript of proceedings 2 September 2016, pages 96-9720 Transcript of proceedings 2 September 2016, pages 63 and 75-76

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55. The Tribunal is of the view that decision of the original tribunal was within this

range, reasonable in the circumstances and does not reveal any error.

Tenant’s work account

56. Mr Mutis provided an invoice dated 24 April 2014 for materials and work done

on the premises. This includes “patching, walls, skirting and repairing walls

where old heaters had been moved”, “repairing fences”, “veranda” and

“landscaping / outdoor fire place built” at a total cost of $3,564. Mr Mutis went

on to state that “I have had two sections of my fence knocked down twice,

letting my dog out both times”; “when machinery was also pulling out a tree

from next door it uprooted into my yard destroying fence”; “I was forced to

dismantle my garden shed and used the panels to create a new fence”; “for years

I have been asking for repairs to be done and stated that this residence has never

been supplied with heating forcing me to buy a gas heater to install”; “thank you

for your efforts to contact Harry [Koesmarno] and obtaining approval for repair

and reimbursement as I have put a lot of effort into making this house liveable”

(exhibit R1).

57. There was some dispute about the removal of the old heaters which led to the

need to repair of the walls. It appears that these were removed by the previous

tenants. The house was rented without heating and Mr Mutis installed gas

heaters himself to address this.21

58. As noted above, there were discussions in relation to the tenant undertaking

some repairs from early in the lease. In an email from the agent to the tenant

dated 28 May 2014, apparently in reply to the specific claim by Mr Mutis, she

stated that she has “heard back from the owner in regards to the repairs to the

property” and “he is happy to cover the cost of repairs except for the repairs to

the fence we will be getting the cost for this from the builder next door.” It is

then stated that the “remaining costs would be taken from the rent owing ”

(exhibit R2).

59. Despite references to the cost of the repairs being applied to the rent owing, in

exhibit A3 the lessor states that “I refused for the payment”. Although the

21 Transcript of proceedings 1 October 2015, page 44

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position was somewhat confused, the hearing was conducted on the basis that

this claim was not paid or set off against rent. At the hearing Me Koesmarno

continued to dispute the costs for at least the fireplace, verandah, repair of wall

in relation to the heaters and the fencing.22

60. Mr Koesmarno argued that the tenant refused to use the list of approved

tradespeople; he did the repairs to obtain a financial benefit; it was “unlawful

and unethical”; he did not have “workers compensation insurance”; and the

work was unsatisfactory and created more problems.23

61. It is true that these do not appear to have been “urgent repairs” as specified in

clause 60 of the Standard Terms, nor were they undertaken by one of the

qualified tradespersons nominated by the lessor (clauses 61 and 62).

62. But the original tribunal held that the charges did not include anything

“particularly unrealistic”; that “but for the agent’s encouragement” it would not

have allowed the claim; but as “the agent effectively authorized the work” the

tribunal thought it had little choice but to allow it (at [35]). This Tribunal agrees

that there is some evidence of approval by the agent, and indeed by the lessor

himself, except in relation to the fencing.

63. The Tribunal also notes that the evidence suggests that most of the items were

repaired because the lessor failed to maintain the premises in a reasonable state.

This is particularly so in relation to the patching and repairing the walls, fences,

verandahs, and removal of rubbish. The lessor was obliged under the lease to

repair these within four weeks of being notified; Mr Mutis undertook the repairs

three years after he notified them. The invoice can be seen as a reasonable

estimate of some of the damages arising from this breach by the lessor of his

obligation to repair.

64. Two particular items should be mentioned. One is the cost of repairing the

fence. It is true that Mr Koesmarno did not approve this cost. But this amount is

a direct consequence of the poor condition of the fence and at least on this basis

22 Transcript of proceedings 2 September 2016, pages 100-10923 Exhibit A3; transcript of proceedings 2 September 2016, pages 100-

109

17

should be the subject of a compensation order. It may be that the lessor could

recover the cost of repairs from the neighbour, but it is clear that the tenant

should not be left bearing this cost.

65. Second, Mr Koesmarno had particular concerns in relation to the cost of the

“landscaping / outdoor fire place built”. In the hearing Mr Koesmarno referred

to this as “malicious damage” and “illegal”,24 but no basis was suggested for the

illegality. The Tribunal accepts the tenant’s description of “clearing rubble and

dead soil, grass seeding yard, levelling ground, designed and built brick

rendered outdoor fire place with gravel path and surrounding area”.25 Like the

original tribunal, this Tribunal thinks on balance this amount should be allowed.

This aspect of the decision of the original tribunal does not reveal any error.

Water

66. As noted above the tenant owed $2205 in water rates, but he argued that a

proportion of this was due to leaking taps and other defects which the lessor had

not fixed.

67. The original tribunal found that it did not have enough evidence to make a

quantitative finding on this issue, and that whilst it accepted that there might

well have been leaks, it was “not possible on the state of the evidence provided

to assess this” (at [20]).

68. The tenant directed attention to what was said to be the relevant evidence, and

therefore the error in the original tribunal decision. The tenant referred to the

water rates, together with the claims made by the agents to the tenant for water

consumption, which are at exhibit A2. These show that the consumption charge

passed on to the tenant for the 3 month period up to May 2013 was $87; August

2013 was $150; and December 2013 was $110; but for March 2014 was $188;

May 2014 was $217; August 2014 was $207; November 2014 was $271; and

for February 2015 was $499; and for May 2015 was $476. This suggests a

significant increase in water charges in 2014, and a very significant increase in

2015.

24 Transcript of proceedings 2 September 2016, page 10125 Exhibit R1, invoice of 24 April 2014

18

69. Mr Mutis stated that he reported water leaks in 2014. In May 2015, he reported

“faulty toilet plumbing” and “dripping taps even after repairing several times”.

In May 2015 a plumber attended the house to replace leaking taps and

investigate leaking toilet and reported that the “kitchen taps were replaced and

are in working order” and “the toilet cistern is beyond economical repair and

requires replacement”.26

70. This evidence before the original tribunal and this Tribunal suggests that there

were in fact leaks from 2014 which increased in the first half of 2015. These

were reported but not repaired till about May 2015. This Tribunal is of the view

that the decision to deny this claim by the original tribunal was an error. Using

the charges for August 2013 as a baseline, the additional charges from March

2014 are about $958. This seems an appropriate amount to award for damages

for failure to repair, and deduct from the water usage charges claimed by the

lessor from the tenant.

Alternative basis for claim

71. As discussed above, the tenant primarily sought particular amounts for the

various items claimed. He also suggested an alternative method of calculating

damage. In the email to Mr Koesmarno from his agent dated 4 May 2015 they

record Mr Mutis as stating that “2 years ago I was assured rent would be put

down to [$] 385pw due to house condition, since then only more unresolved

issues have occurred and issues such as faulty oven, water pipes, exposed

brickwork and poorly sealed house”.27 It was suggested by counsel for the

tenant that such a reduction of $65 a week would be appropriate and would

result in a figure of about $13,520, perhaps more since the condition of the

house further deteriorated.28 The Tribunal does not accept this as the best

approach; rather the specific claims have been assessed. However it is noted that

the alternative approach gives a similar result.

26 Exhibit R1; Exhibit A6; transcript of proceedings 1 October 2015, pages 73-75

27 Exhibit R1; exhibit A628 Transcript of proceedings 2 September 2016, pages 79-80

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Conclusion

72. The original tribunal awarded a sum of $8,681 to the tenant. In light of the

above this figure needs to be recalculated as follows:

(a) It needs to take into account the rent of $16,585 and water rates of $2,205,

a total of $18,790, due by the tenant to the lessor.

(b) The tenant’s claim for damages for failure to provide a functioning stove

is upheld and adjusted to $12,750.

(c) The tenants claims as decided by the original tribunal are upheld for:

i. veterinary bills of $617;

ii. mould of $2,500; and

iii. work done of $3,564.

(d) The tenant’s claim for excess water rates caused by a failure to repair is

upheld in the amount of $958.

(e) This gives a total for the crossclaim or set-off by the tenant of $20,389

73. This gives an amount of $1,599 owing from the lessor to the tenant. The order

of the original tribunal is set aside and replaced by an order for this amount.

...........................................President L Crebbin

delivered for and on behalf of the Tribunal

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HEARING DETAILS

FILE NUMBER: AA 10/2016

PARTIES, APPLICANT: Harianto Koesmarno

PARTIES, RESPONDENT: Francisco Mutis

COUNSEL APPEARING, APPLICANT N/A

COUNSEL APPEARING, RESPONDENT Mr Erskine SC

SOLICITORS FOR APPLICANT N/A

SOLICITORS FOR RESPONDENT N/A

TRIBUNAL MEMBERS: Acting Presidential Member R Orr QC

DATES OF HEARING: 25 July & 2 September 2016

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