Section 90 of the Residential Tenancies Act 2010 (the Act) states:
90 Serious damage or injury by tenant or other occupant
(1) The Tribunal may, on application by a landlord, make a termination order if it is satisfied that the tenant, or any person who although not a tenant is occupying or jointly occupying the residential premises, has intentionally or recklessly caused or permitted:
(a) serious damage to the residential premises or any neighbouring property (including any property available for use by the tenant in common with others), or
(b) injury to the landlord, the landlord's agent, an employee or contractor of the landlord or the landlord's agent, or an occupier or person on neighbouring property or premises used in common with the tenant.
(2) The termination order may specify that the order for possession takes effect immediately.
(3) A landlord may make an application under this section without giving the tenant a termination notice.
(4) The Tribunal may make a termination order under this section that takes effect before the end of the fixed term if the residential tenancy agreement is a fixed term agreement.
(5) In this section:
neighbouring property means:
(a) property adjoining or adjacent to the residential premises, or
(b) property owned by the landlord in the general locality of the residential premises.
On 26 July 2013 Bridge Housing Limited (the landlord) filed an application seeking the following orders:
1. Section 69(1)(b) - An order that the tenant pay compensation for the cost of rectifying work done by the tenant on the residential premises;
2. Section 187(1)(b) - An order that requires an action in performance of a residential tenancy agreement; an
3. Section 87 - A termination order where the tenant has breached the residential tenancy agreement.
On 30 August 2013 the matter was listed for a conciliated hearing before Member De Jersey. On that date the Member noted that the application for termination and possession was withdrawn, that the landlord, at the next hearing, intended to seek orders that the respondent (the tenant) undertakes to restore the back yard to the condition it was in at the time the tenant commenced the lease and compensation for certain costs. The landlord was also given leave to amend the claim.
The matter was next listed on 5 November 2013 again before Member De Jersey. On that date the tenant was represented by Mr Michael Hampton of the Brain Injury Foundation and the following consent orders were made:
1. By consent, the tenant, JULES CURE, 19/ Hugo Street REDFERN NSW 2016 Australia, is to pay the landlord, BRIDGE HOUSING LIMITED, C/- Bridge Housing Limited PO BOX 1835 STRAWBERRY HILLS (PO BOX) NSW 2012 Australia, the sum of $2,500.00 on or before 5 February 2014.
Reasons:
Agreed compensation for damage to tree - $2,500.00
1. By consent the tenant is to comply with his obligations under clause 27.1 of the residential tenancy agreement by not undertaking any further excavation works or alterations or additions to the back yard of the leased premises without the landlord's written permission.
2. By consent, if order 2 is not complied with then at any time before 12 March 2014 the landlord may request the re-listing of the application to determine whether the tenancy agreement should be terminated.
The Tribunal notes the agreement between the parties as follows:
A The respondent is to complete and submit a transfer application form within 7 days of today's orders, due by 12 November 2013.
B The applicant is not to issue any contractors with the respondent's contact details. All calls regarding maintenance to the leased premises are to be directed to Michael Hampton or another representative of the Brain Injury Association NSW.
The Tribunal notes that the above orders and agreement are in full and final settlement of the current disputes between the parties.
On 9 December 2013 the landlord sent a facsimile to the Registry requesting the matter be relisted as the tenant had breached the Specific Performance Order (set out in the previous paragraph). The matter was relisted on 6 January 2014 before Member Campbell. The Member adjourned the matter and made orders for the provision of evidence by both parties. The Member made a file note that the relist was in relation to only Order 2 made on 5 November 2013. There was no note to that effect in the actual orders.
On 13 January 2014 the landlord filed a bundle of evidence in the Registry.
On 4 February 2014 the landlord sent further documents by facsimile, including photographs (completely illegible) and correspondence with the tenant's advocate, Mr Hampton. The purpose of the facsimile was to request an earlier hearing date than 4 March 2014 because of the urgency of remedial works required in the neighbouring properties, 17 and 21 " " Street. On the same date the Registry received those documents by hard copy. (It appears that the same request with supporting documents was also sent by facsimile on 29 January 2014.)
The landlord's request for an earlier hearing was granted, the hearing being set down for 18 February 2014 before Senior Member Bordon. On that date the parties signed an agreement to amend the application to include section 90 [of the Act] and to have the matter adjourned until after 10 March 2014. In addition, there was further agreement in relation to access to the premises. The orders were as follows:
On 18 February 2014 the following orders were made:
1. By Determination of member, on 18 February 2014 the hearing was adjourned to a date to be fixed by the Registrar.
2. By consent, the Tenant must comply with the terms of residential tenancy agreement by not undertaking any further excavation works or alterations or additions to the back yard of the premises
3. If these orders are not complied with by the tenant then: at any time before 30 May 2014 the landlord may request the re-listing of this application to determine whether the tenancy should be terminated.
4. The Application is amended to include an application for termination and possession. This includes an application under section 90 of the Residential Tenancies Act.
A separate written notice of the new hearing date will be sent to you in the near future.
J Bordon
Tribunal Member
18 February 2014
These orders were later amended:
"Pursuant to Section 63 of the Civil and Administrative Tribunal Act 2013, orders published on 18 February 2014 are amended as follows:
On 18 February 2014 the hearing was adjourned to a date to be fixed by the Divisional Registrar.
The following procedural directions were made:
1. By Determination of Member, on 18 February 2014 the hearing was adjourned to a date to be fixed by the Registrar.
2. By consent, the Tenant must comply with the terms of residential tenancy agreement by not undertaking any further excavation works or alterations or additions to the back yard of the premises.
3. If these orders are not complied with by the tenant then: at any time before 30 May 2014 the landlord may request the re-listing of this application to determine whether the tenancy should be terminated.
4. The Application is amended to include an application for termination and possession. This includes an application under section 90 of the Residential Tenancies Act. A separate written notice of the new hearing date will be sent to you in the near future.
By consent the Landlord is to have access to the premises on 21 February 2014 at 2:00 PM and 7 March 2014 at 2 PM.
J Bordon
Tribunal Member
19 February 2014"
Following the above hearing, the matter was listed for hearing before me on 20 March 2014. On that date I terminated the tenancy and gave brief written reasons summarising oral reasons given at the conclusion of the hearing. I terminated the tenancy, finding the tenant had caused serious damage such as to come within the meaning of s 90 of the Act. The following paragraphs from my written reasons set out the basis of that finding:
The respondent submits that s 90 only applies to claims where it is alleged the tenant deliberately or recklessly sought to cause the damage (not necessarily with malicious intent) and is not appropriate in this case where it is submitted the respondent did not try to or recklessly cause damage, rather the damage was an unforeseen result of the actions of the respondent which were described as impulsive.
I do not agree with that submission. In my view s 90 does not require that it was the deliberate intention or reckless result to cause damage. It also applies where the person is alleged to have deliberately or recklessly undertaken the actions that caused the damage. In this case, it is accepted that the tenant deliberately undertook major excavation and other works in this backyard which has had the effect of causing serious damage to the applicant's property and the two neighbouring properties resulting and significant expense to repair.
The tenant appealed the decision (having first made an application to have the decision set aside, which was refused). On 11 November 2014 the Appeal Panel, dispensing with an oral hearing, decided on the papers to allow the appeal with, inter alia, the following order:
"5. The whole of the case be reconsidered by the Tribunal as constituted by the same Member, in accordance with the Appeal Panel's construction of s 90(1) of the Residential Tenancies Act 2010 and in accordance with the following directions: …"
Both parties filed additional evidence and submissions. The claim was reheard on 30 January 2014 and the decision was reserved. This is the reserved decision.
[2]
Consideration and Decision
The landlord is seeking termination and possession of the premises on the basis that the tenant has intentionally or recklessly caused or permitted serious damage to the residential premises or any neighbouring property.
[3]
The works the subject of the application
It appears to be undisputed that the tenant commenced what may be described as excavation works in the back yard of his premises so as to lower the ground level of a significant portion of the back yard, and then to lay, or re-lay brick pavers to form a hard surface. It is also undisputed that these works commenced in about February 2013 and continued until at least May 2014, after my original decision, as found by the Appeal Panel. At the remitted hearing, the landlord submitted further photographic evidence suggesting that the works had continued even up to some period after that date.
It was the tenant's case that he intended to improve his premises by managing storm water runoff.
It is also undisputed that the works were carried out without the consent of the landlord.
[4]
The meaning of section 90 of the Act
At paragraphs 41 and 42 of the Appeal decision, the Appeal Panel stated, referring to the paragraphs of my original decision extracted in paragraph 10 above:
41 The Tribunal at first instance erred in its construction of the provision. It is causing serious damage, that is a result, and not simply the actions which led to such damage, which must be either intentional or reckless. That this is so, is plain from the language of the section.
42 Serious damage caused to the residential premises or injury to the landlord (or others associated with the landlord) is an essential part, if not the focus, of the matter addressed in s 90(1). The mental or fault element (intentional or reckless) must attach to that focal point or essential part.
Earlier, the Appeal Panel had said, referring to the second paragraph extracted in paragraph 10 above:
18 As troubling as this state of affairs is for the landlord and the neighbouring properties, nevertheless, but consistent with this construction of the provision:
(1) no finding was made rejecting the Appellant's evidence that his intention was to improve the leased premises (and those of his neighbours);
(2) no findings were made as to what the Appellant intended, expected or foresaw in carrying out the works;
(3) no finding was made that serious damage was recklessly caused.
The Appeal Panel stated in paragraphs 50 to 54 of the Appeal decision:
50. As we pointed out earlier, intentionally or recklessly causing damage can be inferred from the whole of the evidence but this is not how the Tribunal at first instance approached the matter.
51. Accordingly, in our view the decision below was based upon a misconstruction of s 90(1) of the RTA.
Outcome of the Appeal
52. It may be that upon a correct construction of s 90(1) inferences are available that the tenant "intentionally" or "recklessly" caused serious damage to the premises and, perhaps also, to the neighbouring properties. We express no view either way.
53. The evidence needs to be re-considered in the light of the correct construction and findings made on the relevant issues.
54. In the circumstances, the matter should be remitted to the Tribunal at first instance for determination according to the correct construction of the section.
In accordance with the Appeal Decision, I now consider whether the evidence demonstrates that the tenant, in carrying out the undisputed works, intentionally or recklessly caused or permitted serious damage to the subject premises or neighbouring premises.
[5]
The Evidence
Both parties have provided bundles of evidence consisting in the main of copies of correspondence between the tenant and officers of the landlord going back to 2011, numerous photographs, copies of correspondence between officers of the landlord and the tenant's representative, Mr Michael Hampton and written submissions. In my opinion, some of this evidence, while providing background material, is not relevant to the issues to be determined by me.
The Evidence includes all documents provided in relation to the original hearing on 30 March 2014, all evidence and submissions provided in relation to the Appeal and all evidence and submissions provided in relation to the remitted hearing on 30 January 2015.
I find that the tenant continued to work on the back yard of the premises in accordance with his original intention to excavate the back yard and to lay brick pavers to form a hard and smooth surface, including what appears to be two or more steps formed of timber sleepers or similar, after the original hearing of this application in March 2014. This is demonstrated by the photographs of the landlord's inspection on 9 December 2014.
I find that at least from the original hearing on 20 March 2014 the tenant was aware of the damage being caused to neighbouring properties because such damage was set out in some detail in the evidence relied upon by the landlord for that hearing. That evidence included correspondence from the neighbours complaining of serious damage, including water and mud flooding, and damage to the dividing fence and a retaining wall. The latter damage was subject to attempts to fix the fence and wall on a temporary basis, which subsequently failed. This evidence includes correspondence from the proprietors of 17 " " Street and the brief but cogent report of GCA Consultants dated 16 January 2014.
The landlord's evidence also refers to meetings with Mr Hampton in December 2013 in relation to temporary but urgent repairs required to the dividing fence or one of the dividing fences, seeking access which had apparently been denied by the tenant. This evidence was not disputed either in March 2014 or on 30 January 2015. The temporary repairs referred to included bracing one of the dividing fences to prevent it falling over and installing sleepers to close a gap under that fence, being the fence between the subject premises and 17 " " Street. The landlord's evidence also disclosed the laying of sandbags to protect No 17 from mud and also removing mud, in January 2014. Again, that evidence was not disputed.
In my opinion, the tenant was aware of the above because I infer that Mr Hampton liaised with the tenant in trying to arrange access and also and more importantly because the tenant must have been aware of the works which had been undertaken by the landlord. It was not suggested by the tenant that he was in fact unaware of those works. Being aware, the tenant must have been aware that the damage resulted from the works undertaken by him and I so find.
It is clear also from the landlord's evidence that a number of repairs were undertaken to the tenant's premises which related to wear and tear rather than any works undertaken by the tenant. Those works are not relevant to this decision.
One particular document is contained in the landlord's evidence, being a letter from Mr Tim Meaney to the tenant, dated 18 December 2013 and headed "RE: Access to carry out urgent repairs at 19 " " Street, Redfern". That letter relates to allegations of flooding or serious flood damage to the premises at 17 " " Street. Taken together with the correspondence in relation to the tenant's unapproved works I find that the flooding resulted from those works and that the serious damage was known to the tenant. The repairs in relation to the attempt to reduce or stop the flooding related to the dividing fence, the damage to or destruction of which was a direct result of the tenant's works in the back yard.
The tenant asserts that his mental condition, being an acquired brain injury (ABI) affects his cognition as follows:
1. difficulty with short term memory;
2. resultant difficulty with planning and organising;
3. a tendency to fixed and rigid thinking; and
4. a reduced ability to deal with the normal everyday stresses such as dealing with strangers, including tradesman.
There is no independent expert evidence supporting these assertions and I make no findings in that regard. However, even accepting the truth of those assertions, I find that these problems:
1. have had no obvious effect on the tenant's ability to plan, organise and implement major structural works in his back yard; and
2. are not such as to interfere with his understanding of the possible or actual results of those works in causing serious damage.
The tenant did not call any evidence suggesting to the contrary.
On the basis of the above findings, I also find that the tenant's evidence, or rather submission, that he carried out the works in order to improve or repair his premises and also to improve the neighbouring premises, is not an answer to the landlord's claim of intentionally or recklessly causing serious damage. It may well be that such was his initial intention, but once it is clear that serious damage was being caused, it is not possible to maintain that just because that was his intention that he therefore could not and did not know that serious damage was being caused. That is the case even if it was argued (which it was not) that serious damage might be caused in the short term but the tenant maintained the long term aim of improving the premises. That is not an answer to the s 90(1) allegation. Therefore, it is not necessary that I make a finding rejecting the tenant's evidence that his intention was to improve the premises.
The Appeal Panel mentioned the submission of the landlord that the tenant's evidence in the 30 March 2014 hearing that he realised his actions were misguided and that he sought to repair the damage and return the back yard to its original condition is itself demonstrative of the tenant's intent to cause damage. If that is the landlord's submissions, I do not accept it. There may be other reasons for the tenant's seeking to repair the damage, including recognising that such unapproved works are a breach of the residential tenancy agreement.
Another issue referred to by the landlord relates to the tenant's damaging the roots of a large liquidambar tree in the backyard and thereby rendering the tree unsafe. That was the subject of a mediation and agreement between the parties. The tenant does not dispute the facts but states that being resolved, therefore this issue should not be raised against him. The landlord's evidence contains many documents referring to that issue, the concerns of the landlord in that regard, the rectification action taken and the costs of that action. This issue is not "being raised" against the tenant in any sense of trying to revisit the original settlement. However, it is cogent and relevant evidence that the tenant had undertaken works in his backyard which caused serious (and expensive) damage. In that sense, the "tree issue" is relevant and is further evidence in relation to the s 90(1) claim under the Act. I find that the landlord had the liquidambar removed on or around 3 July 2013 and that the tenant was aware of that removal and that the removal was required because his excavation works had exposed the roots of the tree and made it unsafe. The landlord's document include a number of references to the proceedings involving that tree. Further, the landlord sought to amend the original application (as noted above), specifically pleading the damage to the tree and seeking the sum of $5,291.00 cost of having the tree removed. Finally, on this issue, the landlord's evidence includes photographs showing the exposed tree roots and damage to an adjacent brick wall.
[6]
Application of s 90(1) of the Residential Tenancies Act 2010
The section refers to "intentionally" or "recklessly" causing or permitting serious damage to the residential premises or neighbouring property.
[7]
"Intentionally"
"Intentionally" is to be given its normal meaning. According to the Macquarie Dictionary (Revised Edition 1981), "intention" means:
1. the act of determining mentally upon some action or result; a purpose or design;
2. the end or object intended.
As the Appeal Panel pointed out, the intention must relate to the damage (that is, the result of the works), not to the works which resulted in the damage. (I note that although I am bound to apply that interpretation in any case, I am in agreement with it. In that case, in order to find that the tenant intentionally caused the serious damage I am required to find that he determined to cause the serious damage: that was the result he intended. At first glance the facts in this case do not appear to support such a finding. There is no allegation by the landlord that the tenant went through some mental process in deciding to perform certain works so as to cause serious damage. I could not make such a finding on the evidence in this case.
Further, there is another sense in which the tenant could argue a lack of the requisite intention: that is the situation where the results were unforeseen. The tenant, for example, may have decided to "improve" his premises by his works and had no prior realisation, understanding or desire to cause any damage resulting from the works. It may have come as a completely unexpected surprise that damage resulted from the works. For example, the tenant may submit he had no thought whatsoever that the works may result in major water runoff causing flooding to the neighbouring premises. In that case, I could not find the requisite intent, in my opinion.
However, while it may be that initially there was not the requisite intent, indeed just the opposite, being an intent to improve the premises, if the tenant became aware after carrying out some of the works that serious damage was in fact resulting from the works, yet he continued with the works despite that knowledge, then in that case I consider there could properly be a finding that the tenant intentionally caused the serious damage.
In my opinion, the findings made in paragraphs 21 to 26 above support such a finding. After the works were commenced, the tenant became aware that serious damage was being caused yet he continued with the works after obtaining that knowledge. If the works continued to cause serious damage then by that stage the tenant intentionally caused that serious damage. By continuing with the works (including refusing or at least failing to repair the works and restore the premises to their original condition), the tenant intentionally caused serious damage as demonstrated by the landlord's evidence.
[8]
"Recklessly"
"Recklessly" is to be given its normal meaning. According to the Macquarie Dictionary (Revised Edition 1981), "reckless" means:
1. utterly careless of the consequences of action; without caution;
2. characterised by or proceeding from such carelessness."
"Recklessly" has the equivalent adverbial meaning.
The landlord also submits that the tenant recklessly caused serious damage.
The Appeal Panel, in paragraphs 46 to 48 of their decision, refer to the element of mens rea in the area of criminal law, as follows:
"46. The language of "intentionally or recklessly" brings to mind the element of mens rea in the field of criminal law. What constitutes grounds for termination under s 90(1) may well constitute a criminal offence. For example, in NSW it is an offence to intentionally or recklessly damage property belonging to another: s 195(1) of the Crimes Act 1900 (NSW).
47 In the field of criminal law, a person intends the commission of a crime where that person's aim or purpose is to bring about its constituent elements: Halsbury's Laws of Australia at [130-80].
48 Also in that field, a person is said to be reckless where that person acts with knowledge that a consequence is a probable (or in some cases possible) result of his or her actions: Halsbury's Laws of Australia at [130-85]."
I first should note that it is not the purpose or intent of this decision to critique or comment on the Appeal Decision. The issue, however, is an important one in these proceedings and the above paragraphs serve to illustrate the issue clearly.
In paragraph 48 of the Appeal Decision, the Appeal Panel refers to a person being reckless where the person acts with knowledge that a consequence is a probable (or possible) result of his or her actions. This is not the meaning of the work as defined by the Macquarie Dictionary. There, the person is merely "utterly careless" of those consequences. There is no suggestion that the person acts with knowledge of the consequences. If the Appeal Panel is correct, in my respectful opinion, it would mean that "recklessly" is a term of art, as may be suggested by the reference to Halsbury's Laws of Australia.
I have been unable to find any decision suggesting that "reckless" in civil matters is to be given its ordinary meaning, although there are many formulations of what that ordinary meaning is. In R v Lawrence [1981] 1 All ER 974, Lord Hailsham of St Marylebone LC. said:
Recklessness on the part of the doer of an act does presuppose that there is something in the circumstances that would have drawn the attention of an ordinary prudent individual to the possibility that his act was capable of causing the kind of serious harmful consequences that the section which creates the offence was intended to prevent, and that the risk of those harmful consequences occurring was not so slight that an ordinary prudent individual would feel justified in treating them as negligible. It is only when this is so that the doer of the act is acting 'recklessly' if, before doing the act, he either fails to give any thought to the possibility of there being any such risk or, having recognised that there was such risk, he nevertheless goes on to do it.
In my opinion, the Macquarie definition includes the meaning that the "doer of the action" has failed to give any thought to the possibility of risk of damage or harm. It is not necessary to find that had "the doer" considered the possibility of risk of damage it would have been obvious that there was such a risk. It is sufficient if the person simply failed to consider the possibility. I find that the tenant was reckless in that sense in carrying out the works which have resulted in these proceedings.
For the reasons given, I am satisfied the landlord has proved on the balance of probabilities that the tenant recklessly caused or permitted serious damage to the residential premises and to the neighbouring properties.
In exercising my discretion under s 90 of the Act, I am undertaking a different exercise that that in an application pursuant to s 87 of the Act. Although such an order was sought in the initial application as described above, the application was amended to bring the claim pursuant to s 90 of the Act. There is no dispute in that regard. Because of that amendment, I find I am not required to consider the matters set out in s 152(1) of the Act, that section being relevant in an application for termination for breach. The basis of an application under s 90 of the Act is not one in relation to breach of the terms of the residential tenancy agreement.
The residential tenancy agreement is terminated in accordance with s 90 of the Residential Tenancies Act 2010 as the tenant has recklessly caused or permitted serious damage to the residential premises and to the neighbouring properties.
[9]
Civil and Administrative Tribunal of New South Wales
[10]
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: 11 June 2015