Smith v Orlando [2022] NSWCATCD 140

Smith v Orlando [2022] NSWCATCD 140

The landlords did not breach s 52(1) because there was no evidence that the premises were affected by mould or uninhabitable when possession was given. However, after notice of mould from November 2021, the landlords failed to maintain the premises in reasonable repair under s 63: the mould was caused by conditions inherent in the premises, not by the tenants; the landlords' steps, including installing ceiling fans, were delayed and ineffective; and they failed to implement the Mould Cleaning Australia recommendations. The tenants proved loss, and a fair award was $5,000 for damaged items after depreciation plus $1,500 for non-economic loss.

Jurisdiction
Australia
Judgment Date
09 September 2022
Procedural Posture
Residential Tenancy Compensation Application / Principal Judgment After Hearing
Outcome
Application allowed in part; compensation ordered for the tenants.
Legal Topics
['landlord Repair Obligations' 'mould in Residential Premises' 'compensation for Breach of Residential Tenancy Agreement' 'non Economic Loss' 'rent Reduction']
['residential Tenancies' 'consumer and Commercial Law'] ['landlord Repair Obligations' 'mould in Residential Premises' 'compensation for Breach of Residential Tenancy Agreement' 'non Economic Loss' 'rent Reduction']

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Procedural Posture

Residential Tenancy Compensation Application / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the landlords breached s 52(1) of the Residential Tenancies Act 2010 by failing to provide premises that were reasonably clean and fit for habitation at the commencement of the tenancy.' 'Whether the landlords breached s 63 of the Residential Tenancies Act 2010 by failing to maintain the premises in a reasonable state of repair after being notified of mould.' "Whether the mould was caused by inherent features of the premises or by the tenants' use of the premises." "What compensation, including for damaged goods and non-economic loss, should be awarded for the landlords' breach."]

Ratio Decidendi

The landlords did not breach s 52(1) because there was no evidence that the premises were affected by mould or uninhabitable when possession was given. However, after notice of mould from November 2021, the landlords failed to maintain the premises in reasonable repair under s 63: the mould was caused by conditions inherent in the premises, not by the tenants; the landlords' steps, including installing ceiling fans, were delayed and ineffective; and they failed to implement the Mould Cleaning Australia recommendations. The tenants proved loss, and a fair award was $5,000 for damaged items after depreciation plus $1,500 for non-economic loss.

Court Disposition

Application allowed in part; compensation ordered for the tenants.

Orders

  • ['The landlords, Marco Orlando and Sarah Orlando, are to pay the tenants, Anne-Gisele Monica Smith and Benjamin Blake Walker, the sum of $6,500.00 on or before 2 October 2022.']