These Renters Told The Real Estate Agents Their Light Wasn’t Working. Now The Agents Have To Pay Over $300,000

6 April 2019
Hannah Ryan
The apartment's owners and real estate agents sued each other, each saying the other one should cover all the tenant's damages.

Two real estate agents have been ordered to pay a renter $330,000 after they failed to respond to an email about a broken light and the woman tripped down a staircase in the dark and broke her foot.

Karen Than sued her five landlords and the two real estate agents from LJ Hooker Bondi Beach who looked after the Bondi property. The apartment's owners and the real estate agents then sued each other over who was responsible for paying Than's compensation.

In a judgement delivered in February, the NSW District Court found that while the owners and the agents had breached their duties of care to Than, the agents should cover all the damages because they never told the owners about the problem with the light.

Senior policy officer with Tenants NSW Leo Patterson Ross said the decision "should act as a warning for any agents who aren't keeping on top of repairs".

"Often agents are seen as having no responsibility — the contract is with the landlord," he said. "This decision shows agents do need to take responsibility for their part in this process."

The court heard that Than's flatmate had complained at least twice via email — in May and July 2015 — about the lighting in the stairwell of the building's common area not working. The emails both referred to the light being "out again". In one email, the flatmate said that it was "dangerous walking through the stairwell at night as we can’t see anything."

After the May email, real estate agent Adrian Tesoriero of LJ Hooker sent his regular electrician to the Hall Street property, where he replaced some lighting components.

But when he got another email two months later informing him the light was out again, Tesoriero did not do anything, the court inferred.

Although Tesoriero told the court he asked the electrician to "go back and fix the light again", there was no documentary evidence to prove that he did so, and he did not reply to the tenant's email.

At 6am on Sunday Aug. 2, 2015 Than walked up the stairs to the level above her apartment, looking for the source of noisy music. She flicked the switch to turn on the light, but nothing happened. As she walked back down the stairs, she misstepped and fell, fracturing her left foot.

She was temporarily bedridden, moved in with her parents to recuperate, and now has visible scars which cause her pain and embarrassment. She also said she has trouble standing, walking and carrying her young children, and experiences pain in cold weather.

The judge found that both the owners and the agents (Tesoriero and another real estate agent at LJ Hooker Bondi Beach) had breached their duty of care to Than. However, each sought to blame the other for Than's fall, with cross-claims that said the other was completely liable for the damage. The agents said the agreement between the parties indemnified them, and the owners said the agent did not tell them about the broken light and failed to arrange repairs.

The judge found that the agents were not covered by the indemnity agreement because they did not properly perform their obligations and that they should cover all the damages, which amounted to $330,000.

"[Tesoriero] did not investigate with the electrician the nature or cause of the problem, which was a recurrent problem rather than an isolated incident," Judge Levy wrote. "He did not bring the problem to the attention of the owners .... He did not appear to have responded to the tenant’s email reporting the problem."

The judge found that the owners did not inspect the property properly and maintain the stairwell lighting, which they knew had a history of malfunction.

But the owners paid the agency to take care of inspection and maintenance, which meant the agents were responsible for doing most of that work unless the landlords needed to approve costs.

While the owners should have asked about the causes of the May 2015 lighting failure, they were not told about the July email and so did not know anything had to be done. Ultimately, the judge found that the agent was more responsible for the injury and that if he had told the owners about the July email, they would have responded appropriately.

"The agent had the last opportunity to avoid the adverse outcome," Judge Levy said, finding that he should have told the owners about the light, and either arranged for temporary lighting to be installing or put up warning signs.

Patterson Ross said repairs are among the most common reasons people call Tenants NSW for advice and that some properties are in "a really bad state".

"There are no fines for leasing properties in poor condition or for failing to carry out repairs," he said.

"Landlords, agents and government need to recognise that tenants don't raise issues for the fun of it — we raise them because it's our home and we have a right to be safe. Requests need to be taken more seriously."

Than and her lawyers declined to comment. Tesoriero also declined to comment.