The tenant occupied the rental premises in a strata plan apartment block. On June 2 2011, the bathroom flooded and the water level rose up through the floor and shower waste. The tenant telephoned the landlord’s managing agent and was authorised to contact a plumber to deal with the emergency. The plumber arrived an hour later and made temporary repairs to stop the flooding, he returned the next morning and made some more repairs. At this stage the tenant believed that all the repairs were finished.

A week or so later the tenant went away for the weekend and was contacted by the managing agent who had been advised that water was leaking from the rental premises. The agent did not have a key and the tenant was on the way back from Queensland. When the tenant finally arrived home it was to a flooded apartment with water and sewerage throughout the premises. The furniture, clothing and other goods were ruined and the tenant had to find temporary accommodation immediately. At such short notice all that was available for the night was a hotel.

The tenant did not have contents insurance but the Owners Corporation agreed to pay $9000, the equivalent value of the damaged possessions. However, the tenant was still out of pocket for the cost of the hotel and so made a claim against the landlord for accommodation costs, distress and inconvenience caused by the events.

In order to establish the claim the tenant had to prove that the landlord had breached the residential tenancy agreement, in particular the obligation of the landlord to provide and maintain the premises in a reasonable state of repair. The tenant must also show that the landlord knew of the defect and failed to carry out the repairs in a timely manner. This was not the case, the tenant had contacted the emergency plumber immediately and had believed that the complaint had been rectified. It was found that the flooding which had caused the damage was actually caused by a defect in the common property drainage system and both the landlord and the tenant were under the assumption that the original defect had been fixed.

It was decided by members of the tribunal that the landlord was unaware of the underlying defect and could therefore not be in breach of the obligation to maintain the premises in a state of good repair. The tenant was therefore unable to claim for loss of accommodation costs, distress and inconvenience.