Keene v Kuhnert [2021] NSWCATAP 65

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Keene v Kuhnert [2021] NSWCATAP 65 Hearing dates: 15 March, 2021 Date of orders: 19 March 2021 Decision date: 19 March 2021 Jurisdiction: Appeal Panel Before: The Hon F Marks Principal Member D Robertson Senior Member Decision: To the extent that leave to appeal is necessary, leave is refused and otherwise the appeal is dismissed. Catchwords: APPEAL - appeal on grounds that decision was against the weight of the evidence and not fair and equitable – held weight of the evidence justified the decision and decision not demonstrated to be not fair and equitable – appeal dismissed Legislation Cited: Civil and Administrative Tribunal Act s80,Sch 4 Cases Cited: None cited Texts Cited: None cited Category: Principal judgment Parties: Michael Keene (Appellant) Rebecca-Lee Kuhnert and Llewellyn Mills (Respondents) Representation: Each party appeared in person File Number(s): 2021/00056021 (AP 21/00461) Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal NSW Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 22 December, 2020 Before: RC Titterton OAM Senior Member File Number(s): RT 20/32232, RT 20/34047

Reasons for decision

Factual background 1. The appellant Michael Keene leased residential premises to the respondents Rebecca-Lee Kuhnert and Llewellyn Mills under a residential tenancy agreement on 13 October 2018 providing for a term of 24 months commencing on 10 November 2018. The respondents said that prior to June 2020 they had noticed small spots of mould in their bedroom which they cleaned with vinegar. In June 2020 they noticed for the first time a large patch of mould in the front bedroom of the premises which reappeared despite being cleaned. On inspection the respondents found large patches of mould in the two remaining bedrooms. 2. The respondents notified the appellant through his agent on 12 July, 2020 of the presence of the mould. Following an inspection, the appellant's agent wrote to the respondents on 14 July 2020 stating that because the mould was not present at the start of the tenancy and appeared during the tenancy, the respondents were obliged to deal with the problem. It was suggested that the affected rooms should be ventilated. 3. The respondents vacated the premises on 3 August 2020. Both parties commenced proceedings in the Consumer and Commercial Division of this Tribunal. The respondents sought an order terminating the tenancy agreement, the return of the bond and compensation for goods damaged by the mould. The appellant sought orders for unpaid rent, and the cost of cleaning, repairing, and replacing damaged items. 4. After conducting a hearing, a Senior Member issued comprehensive reasons for decision dismissing the appellant's claims and upholding those of the respondents. During the hearing evidence was adduced both orally and in written form which, relevantly, went to the cause of the mould in the rented property. In essence the appellant asserted that the mould was caused solely by the failure of the respondents to adequately ventilate the premises, allowing moisture to build up during the winter months. The respondents asserted that the mould was caused by some defect in the premises and not by reason of anything that they had done or failed to do. 5. The appellant filed a Notice of Appeal asserting that the respondents were not entitled to terminate the tenancy agreement, and that in consequence a monetary order should have been made in his favour. He asserted that the decision was not fair and equitable and was against the weight of the evidence.

The evidence before the Tribunal 1. In essence, the Senior Member relied upon evidence adduced by the respondents from a representative of "Benny Fixes." A report dated 18 July 2020 stated that the master bedroom contained extensive mould and more mould was present in the next-door bedroom. There was no evidence of any roof leak or any evidence of any breaching of the external brickwork on the property. However, the author gained access to the subfloor area under the master bedroom and noted extensive mould and dampness on the ground and the external walls, as well as dampness on the floor bearers at the junction of each stump with moisture evident on the floorboards. The report noted evidence of rising damp on the inner leaf of the external walls and bearer stumps beneath the master bedroom. It stated that inadequate subfloor ventilation and a possible breach of the slate damp proof course were suspected as contributing factors. These findings are corroborated by photographs which were provided as evidence in the proceedings. The report recommended the addition of external wall vents to allow for greater cross ventilation and installation of a fan system to encourage movement of air in the subfloor area. 2. The appellant relied on a report from the Mould Doctor following an inspection on 28 August 2020. The author of that report confirmed that there was an extremely high moisture level in the master bedroom and that the doorframe in the bathroom was wet with visible signs of water staining and rotting. This was suggested to result from a possible leak from the shower. Significantly the report said "Moisture ingress causing visible mould may be a result of building defects, condensation and elevated relative humidity levels……. If left untreated, the mould can be a potential health hazard to the occupants." The report recommended the use of portable dehumidifiers. 3. That report stated that there was no evidence of rising damp "or any form of structural issues". It noted that there was some dampness in the subfloor, "but it does not appear to be wet. No visible pooling of water." 4. The appellant also relied on a report from Mould Cleaning Australia which followed an inspection on 6 August 2020. This report also stated that the mould which was present in the premises was not caused by "rising damp" but was caused by "dew point" when humid air is cooled causing water vapour to be condensed into water and so producing conditions for mould to grow. The report said that the level of humidity and moisture in the bathroom demonstrated that there was inadequate ventilation. It recommended the installation of exhaust fans and the use of dehumidifiers.

The appellant's application to rely on fresh evidence 1. The appellant sought to adduce evidence for the purpose of the appeal proceedings which had not been produced during the course of the original proceedings. This evidence consisted of a statement dated 9 February 2021 made by a person who we understand was a painter concerning an inspection of the premises that he had made on 14 July 2020 and which included a reference to a conversation which he had had with the respondent Rebecca-Lee Kuhnert. The appellant was unable to proffer any reason why this witness could not have produced a statement prior to the hearing before the Senior Member on 20 November 2020. The respondents objected to the appellant seeking to rely upon this late evidence. 2. We determined to reject the appellant's application because the evidence did not meet the criterion laid down in clause 12 of Schedule 4 to the Civil and Administrative Tribunal Act 2013 (NSW) for the admission of fresh evidence on appeal, that is that the evidence was not reasonably available at the time of the original hearing, and because, if the evidence had been admitted, the respondents would have had to have been given an opportunity to give evidence about the conversation asserted to have taken place with one of them and the state of the premises on that occasion. This would have precluded the appeal from proceeding.

The decision under appeal 1. In his comprehensive reasons the Senior Member said that on the overall basis of the evidence the premises were subject to significant dampness and by reason of the mould were not fit for habitation. All the reports referred to potential damage to health caused by mould. 2. We note that only the report relied upon by the respondents described a detailed examination of the subfloor area, with photographs corroborating the presence of conditions likely to cause mould. We have set out its contents in summary form in [6] above. The report of The Mould Doctor contained a reference to "Sub Floor" with a notation that "there is some dampness in the subfloor, but it does not appear to be wet. No visible pooling of water." That report also contains 3 photographs purportedly of the subfloor area but those photographs do not have the same degree of detail as those contained in the report relied upon by the respondents. 3. In addition, the reports relied upon by the appellant all assert that improvements need to be made to the property to eliminate factors which would cause mould. These are noted at [7] and [9] above.

There was no error in the decision of the Senior Member 1. The task of the Senior Member in determining the proceedings before him was to evaluate the evidence given and produced by the parties, and where that evidence was inconsistent, to decide what of that evidence it was safe and appropriate to rely upon. In essence, the dispute between the parties revolved around competing assertions about whether the respondents caused the mould by reason of the manner in which they lived in the premises, or whether the mould was caused by some deficiency or defect in the premises themselves. In order to carry out his task the Senior Member analysed the evidence and determined that he preferred the explanation advanced on behalf of the respondents. We detect no error in this approach. 2. There is significant evidence that the state of the property rather than some neglect on the part of the respondents was the cause of the mould. On this basis the Senior Member was entitled to conclude that the premises were not fit for habitation, and that the respondents were entitled to terminate the residential tenancy agreement.

Conclusion as to disposal of the appeal 1. The determination of this appeal is governed by the provisions of section 80 (2) of the Civil and Administrative Tribunal Act ("the CAT Act") 80 Making of internal appeals (2) Any internal appeal may be made— (a) in the case of an interlocutory decision of the Tribunal at first instance—with the leave of the Appeal Panel, and (b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance—as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds. 1. By reason of the provisions of Schedule 4 to the CAT Act limitations are imposed on the right of appeal from decisions of the Consumer and Commercial Division. 12 Limitations on internal appeals against Division decisions (1) An Appeal Panel may grant leave under section 80(2)(b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because— (a) the decision of the Tribunal under appeal was not fair and equitable, or (b) the decision of the Tribunal under appeal was against the weight of evidence, or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). 1. The appellant did not identify any error of law in the reasoning of the Senior Member and the decision was not against the weight of evidence or not fair and equitable. To the contrary, we conclude that the weight of the evidence in the proceedings justified the decision of the Senior Member, for the reasons which we have set out above. 2. It follows that the appellant has not established any ground upon which we might grant leave to appeal, and that to the extent that leave to appeal is necessary, it should be refused and otherwise the appeal should be dismissed.

Order 1. To the extent that leave to appeal is necessary, leave is refused and otherwise the appeal is dismissed.

********** 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: 19 March 2021