Brown & Ors v CEO [2025] NTSC 72 | Case summary

LANDLORD AND TENANT - consideration of "subject to this part" in s 57 of the Residential Tenancies Act - whether Tribunal applied the proper meaning to the phrase "reasonable diligence" - Landlord's obligation is to take all steps that a reasonably prudent landlord would take - consideration of whether Tribunal failed to properly apply s 57 of the Residential Tenancies Act - whether notifications were made "as soon as reasonably practicable" - whether Tribunal correctly applied s 51(1)(a) of the Residential Tenancies Act -whether Tribunal correctly applied s 48(1)(a) of the Residential Tenancies Act - whether Tribunal applied a correct understanding of s 49 of the Residential Tenancies Act - whether Tribunal erred in confining any award of damages for disappointment and distress pursuant to s 122 Residential Tenancies Act - whether Tribunal failed to apply a correct understanding of regulations 3 and 5 of the Housing Regulations 1983 (NT).

Brown & Ors v CEO [2025] NTSC 72 | Case summary | Zoe

[31]

[5] Each of the tenants seeks leave to appeal from the decisions in their respective proceedings. There are 22 proposed grounds of appeal, several of which have a number of "sub-grounds". In addition, the landlord has filed (subject to leave) a cross appeal which raises four grounds. Finally, the tenants rely upon a notice of contention, raising one issue.
[6] In the Tribunal all six proceedings were heard together.[3] The approach on appeal was shaped by the approach taken before the Tribunal. The Tribunal proceeding was framed by reference to an "agreed list of outstanding issues to be determined" (list of issues) which is set out in the Tribunal's decision at [18].[4] With the exception of issues 1 and 2, the list of issues does not relate to specific tenancies or premises but appears to have been intended to refer to each of the tenancies, in so far as a particular issue or question might be relevant to a particular alleged breach. While an attempt to narrow the issues in the absence of pleadings was appropriate, each separate claim alleges a breach of a tenancy agreement and the focus must first be upon whether the breach has been proven. Whether any compensation should be awarded is a secondary consideration. With the benefit of hindsight, it may have been more helpful to the Tribunal, and the parties, to direct attention to a traditional breach/causation/quantum methodology, rather than focusing upon the list of issues.
[7] The tenants' position before the Tribunal, and this Court, was that these proceedings would serve as test cases, resolution of which would assist in determining a further 24 outstanding proceedings relating to tenancy disputes between the landlord and individuals at Laramba still before the Tribunal. The landlord took a different view, stating that although the applications proceeded in the Tribunal as "informal" test cases there was never any agreement between the parties as to how these evidence-specific claims could be used to determine other claims.[5]
[8] Although there are some common legal issues arising, and the test case approach is understandable on that basis, at least at the time the applications were initially filed, there are significant limitations as to the utility of a decision in one tenancy dispute as a template for resolution of another. The most obvious problem is that each dispute as to a particular allegation of breach, whether it relates to failures of habitability, security or failure to repair, or a combination of those, and any resultant claim for compensation, must be assessed according to its own facts. Therefore, it is very likely that there will be different outcomes in different cases, with little flowing by way of precedent.[6]

[32]

[9] A detailed summary of the grounds of appeal at this point in the reasons would be lengthy, and unenlightening. Suffice to say that the appellants relied upon four broad categories of asserted legal error. They are summarised as: incorrect application of the law (grounds 5, 5A, 7, 8, 10, 11, 12, 14, 15 and 17); failure to afford natural justice (grounds 1, 2 and 18); and failure to evaluate and deal with every issue of significance raised (grounds 6, 7, 13 and 21); and legal unreasonableness (grounds 1, 4 and 19). I will proceed by setting out each ground raised by the tenants by reference to the Tribunal's decision as a heading and then provide reasons for my decisions.
[10] The landlord's proposed cross appeal also raises grounds of procedural fairness and legal unreasonableness, together with a challenge to the Tribunal's findings that the tenancy agreement in relation to Lot 67 did not comply with s 19(1)(d) of the RTA, and that the Lot 22 tenancy agreement was not terminated. The landlord seeks remission in relation to its appeal grounds relating to compensation and declarations as to the status of the tenancy agreements for Lots 22 and 67.
[11] Some of the tenants' grounds of appeal raise very general complaints which are said in submissions to be supported by "examples" from the evidence and submissions in relation to particular points. In most cases, the so-called examples are actually particular decisions in the proceeding which turn on their own facts. It is not possible to make any general findings as to error based on examples. In addition, on an appeal it is for the appellant to point to an error and the basis for it. It is not the role of an appeal court to search for error. I will proceed to deal with each ground raised by the tenants by reference to the particular decision, evidence and matters relied upon by the tenants (or where relevant the landlord) in relation to each proposed ground of appeal.
[12] An appeal from the Tribunal to this Court is governed by s 141 of the NTCAT Act and is limited to a question of law. The principles relevant to an appeal on a question of law are set out in Booth v An Assessor.[7] Leave to appeal is required. Leave should be granted only if it is in the interests of justice to do so in all the circumstances of the case. In making that assessment the court will consider whether there is sufficient doubt about the question of law to justify the grant of leave and whether a substantial injustice would result if the error is not corrected.[8] An error of law identified must be one which could vitiate the Tribunal's decision; that is there must be a real possibility that the error could (but not would) have affected the Tribunal's decision.[9]
[13] The applications for leave to appeal rely upon the merits of each of the proposed grounds of appeal, which were fully argued. The landlord's position was that leave to appeal should be refused on all but ground 15.
[14] As I explain in these reasons, leave to appeal on grounds 15 and 16, and cross appeal ground 3, is granted and the appeal upheld. The notice of contention is upheld. Leave to appeal is not granted in relation to proposed grounds 2B, 3, 5A, 7, 11, 13, 19, 20, 21, and cross appeal grounds 1 and 2. Leave to appeal is granted, but the appeal dismissed in relation to grounds 1, 2A, 4, 5, 6, 8, 9, 10, 12, 14, 17 and 18. It was unnecessary to determine cross appeal ground 4.

[34]

[15] The tenants argued that the Tribunal failed to comply with the rules of natural justice, as required by s 53 of the NTCAT Act, in that it failed to consider the tenants' submissions about the weight that should be given to certain witness statements, the weight that should be given to the absence of other witness statements and the specific reasons that some of the landlord's witnesses should not be preferred in relation to certain points of fact.[10] In oral argument, counsel for the tenants referred to the tenants' written closing submissions before the Tribunal at paragraphs [18] - [21], [26] and [27],[11] together with the oral submissions to the Tribunal on the same issues on 3 August 2022.[12]
[16] The landlord argued that the tenants' complaint relates only to the evaluation of evidence by the Tribunal and is posed at such a high level of generality that it is not possible to identify how a particular error of law could have resulted in a different outcome in relation to any of the tenants' claims. The landlord further argued that, in any event, the Tribunal did consider the submissions of the tenants as it was required to do, that there was in the circumstances no legal requirement that the Tribunal address every point of detail raised by the tenants in their oral and written submissions, and that the submissions were in any event without merit.
[17] The tenants' argument relied upon the decision of the High Court in Plaintiff M1/2021 v Minister for Home Affairs.[13] That case concerned a person whose visa had been cancelled on character grounds. He made representations to an administrative decision maker in support of an application for revocation of the cancellation decision which included reliance upon Australia's international non-refoulment obligations. The decision maker who rejected the application considered the plaintiff's representations, including those relating to refoulment, but declined to revoke the visa cancellation, reasoning that the plaintiff had a separate right to apply for a protection visa and refoulment would be considered in the course of that application.
[18] The majority in the High Court held that there was no jurisdictional error, or denial of natural justice by the decision maker.[14] In a joint judgment, Kiefel CJ, Keane, Gordon and Steward JJ, said that "a decision-maker must read, identify, understand and evaluate the representations".[15] The plurality then went on to say:[16]

[36]

[19] As the High Court's decision in Plaintiff M1/2021 makes clear, in reference to the statutory process under consideration there, the question of how a decision maker is required to take a submission into account depends upon the circumstances. The decisions which are the subject of complaint in this ground were not made by an administrative decision maker, as in Plaintiff M1/2021, but by the Tribunal exercising its quasi-judicial powers. An allegation that a body such as the Tribunal has denied a party procedural fairness is a significant matter. It must be considered in the context of the Tribunal's function and governing statute.
[20] Counsel for the tenants strenuously argued that this ground of appeal was not based on an assertion that the Tribunal gave inadequate reasons but upon an alleged failure by the Tribunal to take the tenants' submissions into account, which he said amounted to a denial of natural justice in the sense described in Plaintiff M1/2021. Notwithstanding that, it remains the case that provision of adequate reasons is essential in order for an appeal court to carry out its function.[17] It is only possible to determine what the Tribunal took into account by reference to the reasons given.
[21] The Tribunal addressed each individual claim for breach of the tenancy agreements resulting from the "repair" items as set out in the 2019 and 2022 Repair Tables and made separate findings for each claim.[18] Those findings are largely findings of fact, although some are mixed fact and law. The reasons for each individual decision on the separate breach allegations are, as is appropriate given the nature of the proceeding, often brief. However, the reasons must be read as a whole.
[22] In order to properly assess the tenants' argument it is necessary to consider what the tenants' submissions were, and how they related to the matters which the Tribunal was called upon to decide. The tenants bore the onus of proof on each allegation of breach. At first instance the tenants sought to undermine the evidence given on behalf of the landlord in order to convince the Tribunal to accept their evidence. In closing arguments, both oral and written, counsel for the tenants urged the Tribunal to accept the evidence of the tenants in preference to the evidence of witnesses called for the landlord,[19] and by extension the documentary evidence produced by the landlord, on a number of bases which were directed to the credibility, and reliability.
[23] The tenants argued before the Tribunal that:
1. Donna Roman (an employee of the landlord, acknowledged as an "on the ground" witness) gave unreliable evidence because her memory of the particular premises was poor, and her record-keeping was "cursory" and included a lot of errors;
  1. Various other witnesses called by the landlord were "bureaucrats" from "air-conditioned offices" in Alice Springs and Darwin and did not really know what was happening with the tenancies and therefore their evidence was not reliable;
2. There were a lot of errors in the documentary records kept by the landlord and therefore those documents could not be relied upon where they contradicted the tenants' sworn evidence;
3. The landlord failed to call "on the ground" staff, such as housing maintenance officers, or contractors about what occurred with each repair item founding an alleged breach by the landlord, without explanation, and therefore an inference should be drawn that those potential witnesses would not have assisted the landlord's case.[20] That inference was relied upon to argue that the Tribunal should find that the tenants' version of events should be accepted.
[24] There are two points to note about the tenants' closing submissions in relation to the landlord's evidence. First, the submission as to credibility was general, although some examples were given, and did not address the evidence relevant to each of the particular factual findings which the Tribunal was required to make in relation to each of the many alleged breaches. Second, the tenants also relied upon the documentary evidence, and to an extent the oral evidence, called by the landlord. Reliance upon the documentary evidence is referred to both in the tenants' closing submissions,[21] and extensively throughout their 2019 and 2022 tables of repairs.[22]
[25] The way in which the evidence was to be used is also relevant. The tenants stated in their closing submissions to the Tribunal, in the section which is said to have been ignored, that Donna Roman's evidence was relevant only to issues 11, 12 and 13 in the "agreed list of issues";[23] Amanda Kuhn's evidence to issues 2, 14, 15 and 16, primarily as they related to the applications concerning Lot 63; and Charlene Mibus' evidence to issues 15 and 16, primarily as they related to the applications concerning Lot 67.
[26] Issue 11 in the list of issues was about whether the absence of a shower curtain or screen made each of the premises not habitable in breach of the term of the tenancy agreement implied by operation of s 48(1)(a) of the RTA. It is dealt with in paragraphs [110] to [124] of the Tribunal's decision.[24] That issue was resolved by the Tribunal largely upon legal grounds and on the basis that there was no shower screen or curtain in place in any of the houses. In so far as Donna Roman may have given incorrect evidence about the presence or absence of shower screens, it was therefore irrelevant to the decision. There was no need for the Tribunal to refer to Donna Roman's evidence in relation to issue 11 because the absence of shower curtains or screens, if ever in dispute, was accepted by the Tribunal.
[27] Issues 12 and 13 refer to the tables of repairs annexed to the agreed list of issues (and, in amended form, the tenants' closing submissions).[25] The question asked in issue 12 was whether the landlord's conduct in relation to each item set out in the tables resulted in a conclusion that it was in breach of the obligation under the tenancy agreement to take reasonable steps to provide and maintain reasonable security (implied by s 49 RTA) or, as relevant, whether the landlord was in breach of the habitability condition implied by s 48(1)(a) of the RTA.
[28] Issue 13 was put in the alternative to issues 11 and 12. It asked for each of the items in the tables of repairs (including the shower screen/curtain referred to in issue 11), where there had not been a breach of the landlord's obligation to provide habitability or security, whether there had instead been a breach of the landlord's obligation to repair in s 57(1) of the RTA. This issue required consideration of related questions as to notification and reasonable diligence in conducting repairs.
[29] The factual decisions which were required to be made pursuant to issues 12 and 13 are dealt with at paragraph [125] of the Tribunal's reasons[26] and in separate sections of the decision under the headings "The 2019 Table of Repairs" appearing between paragraphs [164] and [168],[27] and "The 2022 Table of Repairs" appearing between paragraphs [230] and [231].[28] Consideration of these matters formed the bulk of the questions the Tribunal was required to decide, including the majority of the factual findings. At [125] of the reasons the Tribunal exposed its methodology as follows:

[38]

[30] Although issue 13 refers to a repair claim pursuant to s 57(1)[29] applying as an alternative to every claim initially founded upon either s 48 or s 49, the tenants refined their position in closing submissions to specify which section of the RTA they alleged to have been breached with respect to each alleged repair item. In some cases, the tenants ultimately relied only on a failure to diligently repair in breach of s 57(1). In others they continued to rely upon that section as an alternative to either an alleged breach of the landlord's obligation for habitability (s 48(1)(a)) or security (s 49(1)).
[31] The repair tables attached to the tenants' closing submissions included a table headed "source and references" which included detailed references to documents in the exhibit book filed in the Tribunal proceeding.[30] As part of its written closing submissions the landlord filed a table which set out a detailed summary of its position, including by reference to the evidence relevant to each of the repair items. In submissions in reply the tenants addressed the treatment of the evidence suggested in the landlord's table, including some specific matters which were raised by the landlord in relation to individual repair items.[31]
[32] The submissions which the tenants say the Tribunal failed to consider[32] in the process of weighing evidence and making findings must be seen in the context of the whole of the submissions made by the parties. The submissions said to be ignored were directed to the credibility of the landlord's evidence and/or its weight. The competing evidence was that of the tenants. Further, while impressions and interpretations may have varied and affected the weight given to aspects of the evidence, there were relatively few clear factual disputes. The Tribunal was often faced with a lack of evidence, rather than a need to resolve conflicting versions of events.
[33] In the tenants' closing submissions to the Tribunal they conceded that the oral evidence of Mr Jack should be "approached with caution" due to his limited command of English and the considerable difficulties with his memory.[33] Similar, but less pronounced, difficulties were conceded with respect to the evidence of Mr Stafford, and it was also submitted that lack of memory, given that three years had elapsed since the unattested declarations were made, was relevant to the evidence of Ms Pepperill and Mr Brown.[34] In the same submissions the tenants argued that the Tribunal should accept the evidence set out in the tenants' unattested declarations where it differed from their sworn evidence. Those closing submissions to the Tribunal do not sit well with the tenants' argument on this appeal that the Tribunal should have accepted the tenants' sworn evidence in preference to documents authored by Ms Roman.[35]
[34] The evidence of the tenants and of the landlord relevant to issues 12 and 13, in particular 13, diverged on the question of when notice of the need for the repair of various items in the houses was given. Whether notice was given, and its timing was, as the Tribunal noted at [152] of the reasons, a critical fact to be determined in relation to many of the claims. The Tribunal also noted that the tenants relied "substantially if not entirely" on the unattested declarations. That is consistent with the tenants' closing submissions to the Tribunal referred to above. It strongly suggests that those submissions were considered. In addition, the Tribunal reasons closely examined the evidence of Mr Jack, Ms Pepperill and Mr Brown and explained, by reference to passages of evidence, including from the transcript, why their evidence was not found to be reliable.[36]
[35] The Tribunal President also explained why he did not find the unattested declarations reliable. This was a matter upon which both parties had made submissions. The Tribunal's comments as to the process involved in obtaining the unattested declarations including that they were made without the assistance of interpreters should be read in the context of the detailed findings as to unreliability of the various witnesses' evidence overall, and bearing in mind that the Tribunal member had the advantage of seeing and hearing each of the witnesses give evidence.
[36] Having explained its reasons, the Tribunal found that the evidence of the tenants as to dates of notification was unreliable and that it preferred the documentary evidence from the landlord because, as the President said, those documents "enable me to identify with precision, points by which the respondent had certainly been notified". The Tribunal found that, in the absence of reliable evidence from the tenants, where there were documents recording an issue, it would rely upon that evidence to find that there was notification from at least that point. The Tribunal was entitled to make that finding. The Tribunal, having explained in some detail why it did not generally accept the tenants' evidence of notification based on an assessment of the evidence, then went on to assess each claim set out in the tables of repairs as I have described above. Those reasons are to be read in the light of the evidentiary findings which precede them.
[37] The tenants' submissions in this Court focused upon the Tribunal's evaluation of the evidence of Donna Roman with respect to 2019 Repair Table Lot 22 item (e). The argument that the tenants' submissions on that topic were ignored must be rejected. Lot 22 item (e) alleged a breach of the tenancy agreement by the landlord on the basis that the landlord had failed to diligently repair a broken light and fitting in the kitchen of Mr Jack's house which, he said, had first been reported as needing repair around the middle of 2018. The Tribunal reasons recite the claim and the evidence and refer to the landlord's inspection records. Those inspection records were prepared by Ms Roman and signed by Mr Jack. They each state that the light cover is missing. However, the Tribunal did not rely only on Ms Roman's records. The Tribunal referred to a job card completed by maintenance staff on 21 August 2019 to the effect that there were no covers available to replace the broken one but that the light "still works". That was, along with earlier findings as to the unreliability of the evidence of Mr Jack, the primary basis of the Tribunal's finding that the light fitting became damaged sometime after 21 August 2019 and not in mid-2018 as asserted by Mr Jack.
[38] In oral submissions, counsel for the tenants also referred to a "condition report" at exhibit book 3 page 4930 as a document which the Tribunal specifically used to reject the evidence of Mr Jack on the basis that there cannot have been consideration of the tenants' submissions that Ms Peckett, the apparent author of that document, was not called and the Tribunal should draw an inference from that, that her evidence would not have assisted the landlord's case. The document at EB 3 4930[37] appears to be a rental rebate and continued eligibility form, not a condition report. It appears to be dated 11 September 2019. Counsel for the tenants noted that the document referred to Mr Jack not having a disability, by completing a check box to that effect, a statement which was clearly incorrect. However, I do not accept the submission of the tenants that this document was used by the Tribunal to reject the evidence of Mr Jack. The Tribunal's basis for the rejection of Mr Jack's evidence where it was not corroborated was that it was unreliable for the reasons the Tribunal gave.
[39] Issue 14 before the Tribunal was a question about whether the Limitation Act 1981 (NT) (Limitation Act) applied to various repair items, largely claimed in the 2022 applications. This was primarily a legal issue, understood to be really about whether there should be an extension of time in accordance with s 44 of the Limitation Act. Discovery of the terms of the tenancy agreement was relied upon as the "material fact" for the purposes of the extension of time application.[38] The relevant factual question was whether the tenants of Lots 63 and/or 67 were given a copy of their tenancy agreement at or around the time they entered into the tenancy. This was addressed in the evidence of landlord employees Amanda Khun, and Charlene Mibus, respectively. The Tribunal was not satisfied that, based on their evidence as to the usual practice, copies of the tenancy agreements were not given to the tenants at the time of signing the lease. The Tribunal reasons include a detailed assessment of the evidence in relation to this issue at [175] to [183].[39] The alleged material fact was therefore not proven. In addition, the Tribunal held that even if the tenants were not provided with copies of their leases that was not a material fact for the purpose of an extension of time and, further, that time should not be extended in any event, in the exercise of the discretion, due to prejudice to the landlord.[40]
[40] Issues 15 and 16 in the list of issues related to the rent due under the leases and whether there was any obligation for the landlord to compensate the tenants for overpayment of rent. The question is dealt with at [187] - [200] of the Tribunal reasons.[41] Again there was a clear engagement with the evidence and the tenants' submissions. As to the issue of whether a person was "adequately housed" the Tribunal resolved that whether particular officers turned their mind to that question was irrelevant to that decision.[42]
[41] Failure of a body such as the Tribunal to weigh and consider evidence and to explain, where necessary, a preference for a particular piece of contradictory evidence over another on a relevant question, taking into account a parties' submissions, may point to an error of law.[43] However, in this case, there was no such failure by the Tribunal. The Tribunal appropriately considered the evidence and the submissions of the tenants. It was not necessary for the Tribunal to take up every point made. The tenants were not denied natural justice.
[42] Leave to appeal is granted, and the appeal is dismissed.

[53]

[50] The position of counsel for the tenants in argument on this point before the Tribunal, was that the issue of breach under s 48(1)(a) and the question of "defences" pursuant to s 48(2) were different issues. The tenants also argued that it was unfair that the landlord could rely upon s 48(2) given the Tribunal's refusal to "amend" the list of issues to add additional claims.[51] Counsel for the tenants then said that he was not prepared to argue s 48(2) and that it was for the landlord to seek to add it as an issue.
[51] After hearing from counsel for the landlord the President ruled that evidence relating to causation, as relevant to s 48(2), fell within the matters he needed to consider in determining whether the landlord was in breach of the tenancy agreement, and would be admitted. Counsel for the tenants did not seek an adjournment.
[52] At the conclusion of the hearing, the question was dealt with in submissions by both parties. Counsel for the tenants submitted that they had not had the opportunity to respond to the s 48(2) issue by obtaining evidence from non-tenants who could say how and, if relevant, by whom, particular damage occurred.[52] The tenants' written submissions of 19 August 2022 also dealt comprehensively with their argument as to s 48(2), both procedurally and substantively.[53] Further submissions on that topic were also made by the tenants in reply to the landlord's submissions to the Tribunal.[54]
[53] In the tenants' written submissions to the Tribunal of 19 August 2022, and in submissions in this Court, counsel for the tenants said that they would have been able to obtain evidence from Mr Gilbert Wako (son of Mr Jack and a person said to have knowledge of how damage occurred in Mr Jack's house) but could not do so because he was in gaol at the time that the hearing at Laramba took place.[55] The first two days of the Tribunal hearing were conducted at Laramba and then the evidence resumed in Alice Springs on the third to fifth days. Facilities for giving evidence via audio visual link would have been available in Alice Springs. It is common for people in custody to give evidence in courts, including in civil matters, via audio visual link. There was no evidence, or submission (based upon the transcript), that any attempt had been made to visit the gaol to take a statement from Mr Wako, or to have him give evidence in relation to the s 48(2) issues. The tenants did not suggest that there were any other relevant witnesses who could have been called.
[54] The Tribunal dealt with this issue at [127] - [144] of the reasons.[56] At [132] the President correctly identified that the earlier (2021) application to add items of repair to the proceeding was not concerned with expanding the list of issues but rather was an attempt to amend to add new claims for "repair items". Each of the new repair items carried with it a separate specific allegation of breach of the tenancy agreement by failure by the landlord to diligently repair and/or to provide premises which were habitable or secure. Therefore, each individual "repair item" involved a separate cause of action, namely a breach of the tenancy agreement, for which the tenants sought statutory compensation.
[55] After giving reasons for his decision refusing the tenants' 2021 application to amend, the President then went on to explain why the "good for the goose, good for the gander" approach urged by the tenants was misconceived, pointing out the substantial difference between the tenants' application to add new causes of action and consideration of the law relating to the existing claims. In doing so the President engaged directly with the tenants' submissions on the topic and concluded that, in relation to issue 12, the assessment of whether the landlord was in breach of the tenancy agreement necessarily involved consideration of all aspects of the term implied by s 48, namely the provisions of both s 48(1) and (2).
[56] From a procedural point of view, the status of the list of issues agreed by the parties in August 2020 is unclear. I do not think that it was akin to a pleading. However, even if it was, and if, despite the landlord having raised the matter in the original responses in November 2019, there was any confusion as to the landlord's case in reliance on s 48(2) after August 2020, the tenants were clearly on notice as to the issue from 28 May 2021. The tenants gave evidence and were cross-examined as to the cause of various items of disrepair or damage to their houses at the hearing in late July 2022. They also gave evidence as to associated issues such as notification of the need for repair of particular items to the landlord. There was no evidence of any attempt by the tenants to call additional evidence as to who caused the damage to particular parts of the houses. Had such evidence been available, it was a matter which might have been addressed via an adjournment, but none was sought.
[57] The tenants also complain that the list of issues did not include any reference to determination of issues raised by reference to ss 51 and 55 of the RTA. Section 51(1)(a) of the RTA makes it a term of a tenancy agreement that a tenant will not maintain premises in an "unreasonably dirty condition", allowing for fair wear and tear. A tenant is required to notify the landlord of damage or apparent or potential damage to the premises. Section 51(1)(c) provides that a tenant must not intentionally or negligently cause or permit damage to the premises or ancillary property. However, s 51(3) states that a tenant is not in breach of their obligations in that regard if the breach is caused by the landlord's failure to repair or maintain the property and the landlord had notice that repair or maintenance was required.
[58] Section 55(1) implies a term into a tenancy agreement that a tenant must not make an alteration or addition to premises, unless the landlord has provided written consent or the alteration or addition is authorised or required by law. Section 55(3) provides that if a tenant causes damage by removing or installing a fixture the tenant must notify the landlord and, at the option of the landlord, have the damage repaired or compensate the landlord for the reasonable cost of the repair. There is an exception in s 55A for urgent safety or security modifications.
[59] The landlord argued in its opening submissions to the Tribunal on 28 May 2021[57] that the obligation not to make alterations to the property was relevant to the evaluation of the tenants' claims for breach of the security obligation implied pursuant to s 49, and also to claims for breach of the landlord's obligation to repair implied by s 57(1), in relation to the "Lot 67 window claims".
[60] When counsel for the landlord cross-examined Mr Brown (tenant of Lot 67) at the hearing about the cause of damage to the doors of his house, counsel for the tenants objected on the basis of relevance because "there has been no allegation, at any point, that our clients have breached s 51 of the Act".[58] Counsel went on to say that the tenants were facing the allegation for the first time and it was a "new case" by the landlord. The President, after hearing argument from counsel for the landlord allowed the cross-examination to continue.
[61] The Tribunal was clearly aware of the need to consider the balance of responsibilities between a landlord and tenant when determining whether the landlord was in breach of the tenancy agreement.[59] At [32] of the decision the President wrote:

[56]

[62] The Tribunal decisions complained of by the tenants relate to 2019 Repair Table Lot 22 item (f) and (k) which were allegations of cockroach infestations in the kitchen and bathroom, respectively; Lot 63 items (k), (o) and (p) which concerned lack of a stove, a broken bathroom faucet and missing toilet lid; and Lot 67 items (c), (k) and (w) which were failure to seal around the air conditioner in bedroom 1, grill section of oven not working and spider infestation in the bathroom.
[63] In relation to Lot 63 item (p) the Tribunal found that there was a breach by the landlord of the s 57(1) obligation to diligently repair, although the damage was caused by the tenant. A breach of the s 57(1) obligation was also found in relation to Lot 67 item (k). All other claims were dismissed.
[64] The Tribunal weighed the evidence and considered the circumstances as a whole, including the actions of the tenants, in deciding in relation to each "repair item" whether the tenants had established that the landlord was in breach of its obligations as alleged. It would be entirely artificial, and contrary to the purpose of the RTA, to determine whether one party has breached a tenancy agreement by considering the actions of that party in a vacuum, that is without consideration of all of the circumstances. There may of course be situations where, on the facts, the actions of the party alleged to be in breach will be the main, possibly the sole, focus.
[65] It cannot be the case that in determining whether a party is in breach of a tenancy agreement, the factual basis for a claim, including who was responsible for the state of affairs said to be a breach, cannot be relevant. Such an inquiry must include the relevant conduct of both parties. Relevant matters may or may not amount to a separate breach of the tenancy agreement (in this case by the tenants), but that is not the purpose of the inquiry.
[66] I do not accept that the tenants were denied natural justice because they were not aware that their conduct would be called into question in relation to the cause of damage for which they were seeking compensation. It is not a matter of the landlord setting up a case against the tenants for breach of any implied term of the lease and "setting off" one breach against another. The landlord made no claim for compensation for any breach by the tenants. Nor was it necessary for the landlord to prove a positive claim for breach of another implied term of the tenancy agreement in order to defend the tenants' claims by calling their conduct into question.
[67] In my view it is clear that the tenants were aware that their conduct as tenants would be relevant in these proceedings well in advance of the Tribunal hearing. The issue had been live since the beginning of the proceedings and was made very clear in the landlord's submissions of 28 May 2021.[61] The Tribunal was entitled and in my view obliged, to take all of the evidence into account, including evidence as to the tenants' conduct where relevant to the questions in the proceeding.
[68] A separate complaint is made about the Tribunal's decision in relation to issue 10, which was the only claim for urgent repairs pursuant to s 63 of the RTA which remained outstanding at the time of the Tribunal hearing. The claim was for repair of the split system air conditioner in the lounge of Lot 67. The Tribunal dismissed the application. The tenants' complaint about that decision under this ground is that the only basis upon which the Tribunal could have found against the tenants was s 63(1)(b), namely that the premises were in a state of disrepair arising from the contravention of the tenancy agreement by the tenant.
[69] In my view the "state of disrepair" referred to in s 63(1)(b) refers to the repairs said to be required. It does not refer to the premises generally. Any other construction would be unreasonable because it would be unfair. The tenants argue that because s 63(1)(b) was not mentioned in the list of issues the tenants did not have the opportunity to address the Tribunal on the provision and, in addition, did not submit that the installation of the air conditioner was an act of mitigation due to the landlord failing to provide a habitable dwelling during the summer months.
[70] The contest before the Tribunal appears to have been whether the air conditioner was part of the premises required to be maintained by the landlord. This centred on evidence about who installed it. The landlord's evidence was that it did not. The tenants gave no evidence about when the air conditioner was installed.[62]
[71] The Tribunal noted at [107] of the reasons that an order for emergency repairs cannot be made where there was a contravention of the tenancy agreement. It is not controversial that installation of a fixture without the consent of the landlord may be a contravention of the agreement. That statement needs to be seen in the context of the reasons on this topic overall and the case of the tenants at trial, which was that they did not install the air conditioner.[63]
[72] However, the primary basis of the Tribunal's decision to refuse the order for emergency repairs was the finding, at reasons [108] - [109], that there was no evidence regarding any "fault, failure, breakdown or damage needing repair". That passage is a reference to the definition of "emergency repairs" at s 63(2) of the Act, noting that the tenants relied upon s 63(2)(m) arguing that the problem with the air conditioner was a "fault" within the meaning of that section.[64] That finding, of mixed fact and law, was fatal to the tenants' claim.
[73] The tenants were not denied natural justice. The question of any breach of the tenancy agreement by the tenants was considered only in the context of evaluating the tenants' conduct as relevant and to the questions the Tribunal was required to decide. The conduct of the tenants was relevant on the facts and the tenants were on notice and were given sufficient opportunity to address those factual matters.
[74] Leave to appeal on this ground is granted, and the appeal is dismissed.

[60]

[77] As Mildren J said in Shelton v Oaktech Pty Ltd[70] the principle in Ho v Powell relates to a situation where a party is not called to give evidence and where that party bears the onus of proof. The legal burden of proof in relation to each alleged breach of the tenancy agreement by the landlord was on the tenant. That is the case although there was at various times an evidential burden upon the landlord, for example as to whether a failure to ensure habitability was caused by an act of the tenant, or a tenant's failure to notify, in accordance with s 48(2).
[78] The tenant complains that the Tribunal relied upon inspection reports and pest control invoices to show that the cockroach infestation in the kitchen of Lot 22 was caused by him, although he had given evidence, in his unattested declaration, that he did not cause the problem. However, as discussed in relation to the related issue in ground 1, above, the Tribunal did not approach the evidence in this way.
[79] Although Mr Jack stated, in his unattested declaration, that he did not cause any of the problems in his house, his oral evidence on the cockroach issue was not to the same effect. When he was cross-examined Mr Jack was asked about cleaning in the house and agreed that he found it difficult to do that due to his disability.[71] Later, he was asked specifically about cockroaches in the kitchen. He said he had tried to use a cockroach kit and also boiling water to get rid of them. At the end of this portion of the cross-examination it was put to Mr Jack that the reason he had cockroaches in his house was that it was because it was dirty and there was food for them to eat. His reply, through the interpreter, was "Yeah. So he knows that".[72]
[80] The result is, contrary to the submission of the tenant, that there was evidence upon which the Tribunal was entitled to rely in addition to the landlord's records in determining whether the cockroach infestation was caused by the actions of Mr Jack. The Tribunal made findings of fact based upon the evidence before it, which included the evidence of the tenants, the extensive business records of the landlord, and the opportunity which the President had to inspect each of the houses for himself during the hearing at Laramba.
[81] The complaint as to the decision regarding the lack of a toilet flush button Lot 22, item (j), was made in oral submissions. This was an alleged breach by the landlord by failing to diligently repair the toilet. The issue at the hearing before the Tribunal was the date of notification. Mr Jack's evidence in his unattested declaration that he had told the landlord about the problems in mid-2018 was rejected by the Tribunal for the reasons discussed above in relation to ground 1. The tenant bore the onus in relation to the question of notification in relation to this breach.
[82] The final decision complained of was in relation to Lot 63, item (k), which concerned the lack of a stove or oven at Lot 63 for various periods between (relevantly) 13 May 2016 and 31 October 2019. The tenants claimed that the landlord had failed to ensure habitability as a result of the oven/stove not working, however the Tribunal found that the appliance did not work at various times because the tenants had not appropriately maintained it and had, at one stage, removed it from the house. The Tribunal took into account the steps taken by the landlord, which included provision of three new appliances in the period 2012 to 2019. The Tribunal held that the landlord was not in breach of the tenancy agreement because the lack of an oven/stove was caused by the acts or omissions of the tenants.
[83] As with the other decisions complained of under this ground, the Tribunal relied upon the evidence of the tenants, which is quoted in the Tribunal reasons,[73] as well as the documentary evidence provided by the landlord. The tenants' argument in relation to this and the other two decisions complained of is that the Tribunal acted upon the documentary evidence in particular without the authors of those reports being called. The tenants argue that an inference must be drawn that the evidence of those people would not have assisted the landlord's case because the authors did not provide declarations to the Tribunal and "were not made available for cross-examination".
[84] That submission ignores the fact that there was other evidence upon which the Tribunal could act. Because there was evidence on the issue on which the Tribunal could rely, no basis for a Jones v Dunkel inference was established. The evidence included but was not limited to the documentary evidence, which were business records of the landlord which were in evidence before the Tribunal.
[85] The tenants also complain that the authors of condition reports, named as Cheryl Peckett and Trevor Neill were not called to give evidence and there was no opportunity to cross-examine them. The denial of natural justice is said to be that the reports of those people were used to discredit Mr Jack in relation to his own house.
[86] However, the issues which were said to be caused by the tenants, in particular as to dirtiness, cockroach, and pest infestations, were put to the tenants in cross-examination and they had the opportunity to answer. In addition, the tenants had the opportunity to make submissions to the Tribunal. The lines of dispute were well known to the parties to the litigation. In the circumstances there was no denial of natural justice.
[87] Leave to appeal is refused.

[64]

[89] The tenants argued in the Tribunal that the landlord was in breach of the habitability obligation with respect to Lots 63 and 67, based on the requirement of reasonable comfort, because failure to provide a curtain or screen failed to cater for the tenants' need for privacy taking into account the design of the bathrooms.[76]
[90] On appeal, the tenants' position is that the Tribunal did not provide sufficient reasons on this question because it did not, as required by s 105(2) of the NTCAT Act,[77] make necessary findings of fact. The tenants argue that the Tribunal should have made findings about the different layouts in the bathrooms of the house occupied by Mr Jack[78] compared with that of Ms McNamara and Mr Brown, the different number and category of occupants of each house, and their different privacy needs. The tenants further argue that those are objective circumstances which should have been taken into account by the Tribunal in coming to its conclusion that the absence of a shower screen or curtain did not mean that there was a failure of the landlord to let premises which provided a reasonable level of comfort, and were therefore habitable in accordance with the term implied by s 48(1) of the RTA.
[91] The layout of the houses, including the bathrooms, was not in dispute in the Tribunal proceeding. The President visited the houses as part of the hearing, and inspected the bathrooms, and plans were tendered in evidence by the landlord which showed the design of the houses, including that the toilet was within the bathroom in Lots 63 and 67. It was not entirely clear whether the number of occupants at Lot 67 was in dispute, but even if it was, the tenants' submission to the Tribunal on this issue is quoted at [120] of the Tribunal reasons and directly refers to the colocation of the toilet and showers, and the fact that Lot 67 had 11 occupants.
[92] In addition, in oral submissions before the Tribunal in relation to Lot 67 the tenants' counsel referred to the number of residents and the argument that the layout of the toilets, showers and laundry meant that while one person was having a shower it was not possible to use the toilet without walking through the shower room, and it was also not possible to use the laundry, without interfering with their privacy.[79]
[93] It is clear from the Tribunal reasons that the Tribunal accepted and considered all of those undisputed facts. It was not necessary for the Tribunal to explicitly make findings in relation to facts which were recited in the decision, plainly accepted, and not in dispute.[80] It is apparent from the Tribunal reasons that its decision was made in full knowledge and acceptance of the facts now asserted by the tenants not to have been considered and the submissions made by the tenants at the hearing. The tenants' submission that there was no finding of relevant facts on issue 11 must be rejected.
[94] Leave to appeal is refused.

[68]

[95] This ground of appeal relates to two decisions relating to Lot 67. In each case the complaint is that the impugned findings were illogical or otherwise "bizarre" in the sense described in Minister for Immigration and Border Protection v SZVFW.[81]
[96] The first complaint is as to the Tribunal decisions concerning the split-system air conditioner in the loungeroom of Lot 67. This is the same air-conditioner for which an urgent repair order was sought, as discussed above at ground 2A. Compensation based upon the ineffective operation of the unit was also claimed as part of issue 12 before the Tribunal. The claim was based on an alleged breach of the habitability obligation.[82]
[97] The Tribunal dismissed the application. In doing so, the President referred to the reasons given for rejecting the emergency repair claim at issue 10.[83] There were three reasons for the decision. First, the Tribunal was not satisfied that the air conditioner formed part of the leased premises on the evidence presented by the tenants, who bore the onus of proof on that issue.[84] The Tribunal determined that it was unable to find that the landlord installed the air conditioner in the absence of any evidence to that effect from the tenants and in the face of the evidence from the landlord that it did not do so.[85] The tenants' position was that they did not install the unit.
[98] Second, the Tribunal found that, (impliedly assuming that the tenants installed the air conditioner) unauthorised installation of the appliance was a breach of the tenancy agreement,[86] disentitling the tenant to an order. However, as discussed above, this was a secondary consideration.
[99] Third, the Tribunal found that there was no evidence as to an identified fault with the air conditioner. This finding was largely directed to the meaning of emergency repairs in s 62(2)(m) of the RTA, as discussed above. However, it is this third finding which is the subject of this proposed ground of appeal.
[100] The tenants' argument is that, having experienced the effectiveness of the air conditioner for himself on the view, the Tribunal member could not have found that there was no evidence of any fault, failure, breakdown or damage requiring repair.[87] However the Tribunal's statement that there was "broadly asserted ineffectiveness of the unit"[88] was not a finding but a summary reference to the tenants' submissions. The Tribunal went on to say that there was no evidence as to the level of ineffectiveness of the unit. The tenants' complaint assumes that the President personally found of his own experience that the air conditioner was ineffective, however there is no basis for that submission. A fair reading of the reasons reveals that the Tribunal did not find that the unit was ineffective. As he had the benefit of experiencing the unit in operation for himself, and noting his statement that there was no evidence about the effectiveness of the unit, and that none was pointed to by the tenant, there is no basis on which I can conclude that the Tribunal's finding of fact was legally unreasonable.
[101] I also note that the main reason that the Tribunal did not find that the failure to repair the air conditioner was not a breach of the habitability obligation by the landlord was that the Tribunal was not satisfied that the landlord had installed it and therefore it was not part of the premises which the landlord was obliged to maintain. Once that finding was made the actual operation of the air conditioner became a moot point.
[102] It does not appear that the tenants argued before the Tribunal that the failure to provide an air conditioner was a failure to provide premises which were habitable, in relation to any of the properties. That would have been a different claim.
[103] The second complaint relates to the tenants' claim for compensation for the presence of spiders in the bathroom of Lot 67. The Tribunal found that the presence of the spiders was as a result of the tenants' failure to clean the bathroom. The Tribunal also found that the premises were generally maintained in an unreasonably dirty condition.[89]
[104] The tenants argue that the findings were unreasonable because (a) it was never put to Mr Brown that these tenants failed to keep the ceiling clean and therefore there was a denial of natural justice; (b) there was a reliance upon s 51, which was not included in the list of issues; (c) the finding was illogical because it found that the spiders were in the bathroom because the whole house was in an unreasonably dirty condition when, if that were the case, there would be spiders in the whole house, not only the bathroom (notwithstanding the tenants' submission that spiders tend to gather in bathrooms for reasons unrelated to cleanliness, i.e. water); and (d) there was no evidence connecting spider infestation with dirtiness, noting that although all three houses were dirty there was only a spider infestation in Lot 67.
[105] The tenants' submission that they were denied natural justice cannot be accepted. The transcript of the Tribunal hearing shows that although questions were not asked specifically about the ceiling, there was evidence from Mr Brown that the tenants did not frequently clean the bathroom.[90] Spiders are a common pest and may be present in any house. There was no evidence that the spiders posed a risk to health or safety. The Tribunal is not bound by the rules of evidence and is entitled to inform itself in any way it considers appropriate.[91] In this case the Tribunal member inspected the bathroom, and the rest of the house, himself. The tenants had an opportunity to give evidence, including in cross-examination, and to make submissions on the issue. The reference to s 51 was also not unfair, for the same reason I have explained in relation to appeal ground 2A.
[106] The complaint of illogicality misconstrues the Tribunal reasons. The Tribunal did not find that the dirtiness in other parts of the house caused the spiders to be in the bathroom. What the Tribunal found was that the tenants did not clean the spiders from the bathroom, and that was why they were there. Periodic removal of spiders, and their webs, is something which is part of ordinary cleaning of any house. The fact that the house overall was generally in a dirty condition was a relevant matter which the Tribunal was entitled to take into account (because it indicated the tenants did not often clean the house), but it was not the sole, or even the main, basis for the finding. The Tribunal also relied upon the evidence of the tenant, Mr Brown, and the Tribunal member's own inspection. The Tribunal was entitled to draw the inference that the presence of spiders in the bathroom of Lot 67 was caused by the tenants' failure to remove them.
[107] I also note that whether the house, or even the bathroom, was in an "unreasonably dirty condition" so as to involve a breach of the tenancy agreement by the tenants was not an answer to the tenants' claim. However, in my view the Tribunal did not use the finding of general dirtiness in that way. A tenant may choose to live with spiders on the bathroom ceiling. That does not necessarily mean that the premises, or even the bathroom, is in an unreasonably dirty condition. However, nor does it mean that the presence of spiders involves a breach of the tenancy agreement by the landlord.
[108] In finding that the landlord was not in breach of the term in s 57(1) the Tribunal was not required to find that the tenants were in breach of s 51(1), although the finding may have been open on the evidence.[92] Further, such a finding would not necessarily excuse a landlord, depending on the nature of the breach alleged. In many cases it may be irrelevant. They are two separate allegations of breach, and the interrelationship, if any, depends on the facts and circumstances. In this case, the relationship was simply that there was a general failure to clean the house, including, relevantly, by removing spiders webs from the bathroom as any tenant would be expected to do.
[109] No legal unreasonableness has been established. Leave to appeal is granted and the ground of appeal is dismissed.

[78]

[111] Because s 57(1) is subject to the other provisions of Part 7, it has operation where it is not inconsistent with or repugnant to those provisions.[93] The phrase "subject to" indicates no more than which provision is to prevail in the event of a conflict. It does not imply that there will be a conflict in every case.[94]
[112] The tenants submit that the Tribunal erred because it misconstrued s 57(1) as the "primary obligation to which ss 48 and 49 (among others) were subordinate". The tenants further argue that, due to that error, the various "repair issues" (allegations of breach by the landlord) were first analysed by reference to s 57(1), with the associated expectation that notice was required under s 58(1), and only if not upheld under that provision, considered pursuant to other sections, such as 48 or 49.
[113] The reasons show that the Tribunal considered each item of repair set out in the tenants' tables in sequence. The 2019 and 2022 Repair Tables identified the section of the RTA the tenants primarily relied upon, noting that, as agreed at issue 13 of the list of issues, where a claim in reliance upon s 48 or s 49 was unsuccessful, the claim was also to be considered by reference to s 57(1).
[114] It is possible that more than one obligation of the landlord implied by the RTA is engaged by a particular fact or situation relied on by the tenant in an application for compensation, although compensation will not be awarded twice.[95] However, in relation to any particular breach for which compensation was claimed, the starting point for a date from which compensation is claimable will ordinarily be the date of the breach. That date may vary depending upon the term breached and the particular facts and circumstances of the case.
[115] Contrary to the tenants' submissions on this ground of appeal, the Tribunal did not find that s 57(1) was the primary obligation to which s 48 and s 49 were subordinate. In my view it is plain from the reasons that the Tribunal was well aware that "the section 57(1) obligation is subject to all of Part 7".[96] Nor, as argued by the tenants, did the Tribunal approach its task on the basis that only if a defect fell outside the remit of s 57(1) did s 48 and s 49 have work to do. The passages from the reasons referred to by the tenants do not say that.[97] Further, any general characterisation that the Tribunal approached the matter on that basis is not available on a fair reading of the reasons, which shows that the Tribunal first considered any alleged breach of the habituality or security obligations before considering whether the landlord had failed to diligently repair a particular item.
[116] In the introductory part of the reasons, the Tribunal correctly identified that the claims in the proceedings before it largely related to issues of repair and maintenance founded on allegations of breach of the landlord's obligations implied pursuant to ss 48, 49 and 57(1) of the RTA. There is no error apparent in that general introductory description.[98]
[117] The Tribunal then commenced its discussion of the tenants' claims by setting out a summary of the scheme of Part 7 of the RTA.[99] The Tribunal noted, first, that the RTA balances the obligations of tenants and landlords, and secondly, that ss 48 and 49 are in Division 1, of Part 7 "Landlord's responsibilities" and s 57 is in Division 3, "Repairs". A short summary of the relevant primary obligations of the parties arising from Part 7 was included. Then followed a discussion of the requirement for notice by a tenant, as it applied to claims under ss 48, 49 and 57(1), and affecting claims for compensation pursuant to s 122(2)(b).
[118] The Tribunal did not have the benefit of the High Court's decision in Young v CEOH[100] or the decision of the Court of Appeal in CEO (Housing) v Pepperill[101] when preparing its reasons. As the High Court pointed out in Young v CEOH the design of the RTA provides for the application of the general law of contract, however the statutory compensation provided for in s 122 is an alternative, more accessible, remedy.[102]
[119] Whether there has been a breach of a tenancy agreement, and whether compensation is claimable pursuant to s 122, can only be resolved by reference to each particular fact situation said to constitute a breach. A failure to repair in breach of s 57(1) might lead to a situation where premises become, for example, not habitable within the meaning of s 48(1)(a). In that case there would be two breaches of the tenancy agreement. However, not every habitability issue will also be a breach of s 57(1), and vice versa.
[120] In making s 57(1) subject to the whole of Part 7 the legislature maintains the balance between the obligations of the landlord and the tenant. Neither party can rely upon the general obligation to repair to add, or detract from, other more specific provisions of the tenancy agreement implied elsewhere in Part 7. Contrary to the submissions of the tenants the obligations in s 57(1) are not "cut off" from nor "automatically" subordinate to those in other parts of the RTA, including ss 48 and 49. Nor does clause 10 of the standard form tenancy agreement at Schedule 2 of the Residential Tenancy Regulations 2000 (NT) have that effect. Rather, the various obligations are to operate together, and harmoniously, except that in the case of inconsistency s 57(1) gives way.
[121] The tenants' primary claim in the Tribunal proceedings was for compensation pursuant to s 122(1) of the RTA. That is the second step in a process which commences with establishing that the other party is in breach of the tenancy agreement. Section 122(1) is subject to s 122(2). Section 122(2)(b) provides that a party may not apply for compensation pursuant to s 122(1) for loss or damage suffered by reason of a breach of the landlord's "duty to repair" unless notice under s 58(1) has been given. Neither the word "repair" nor the phrase "landlord's duty to repair" are defined.
[122] In my view the requirement to give notice in s 122(2)(b) refers only to claims based upon a failure to comply with the term of the tenancy agreement imposed by s 57(1). That is because: s 58 immediately follows s 57 in Division 3 of Part 7; 57(2) refers directly to the waiver in s 57(3); and that interpretation reflects the objective of fairly balancing the rights of tenants and landlords.[103] The limiting provision in s 122(2)(b) therefore does not apply to claims for breach of the terms implied by ss 48 or 49.
[123] However, a landlord will not be in breach of the obligation to ensure that premises are habitable if that failure is caused by, either, an act or omission of the tenant or the tenants' failure to notify the landlord that repairs are required.[104] If there is no breach, then no question of compensation can arise.
[124] The various provisions of the RTA may, and often will, have overlapping operation. A simple example is a leaking pipe inside the house. The leak might be quite small, but noticeable. On becoming aware, the tenant must notify the landlord that repairs are required and the landlord must effect the repair with reasonable diligence, in accordance with the obligation in s 57(1). If the landlord fails to diligently effect the repair they will be in breach of the obligation in s 57(1)(b).
[125] If the leak is not repaired after notice is given and the problem escalates such that the house floods and becomes uninhabitable then, assuming the flood was not caused by an intervening act or omission of the tenant, the landlord will also be in breach of s 48(1)(a) - the habitability obligation - from the time of the flood. As the tenant had notified the landlord of the need for repairs there could be no question of the cause being the tenant's failure to notify and the qualification in s 48(2)(b) would not apply. However, had the tenant not made a notification then the flood may well have resulted from that cause and, in that case the landlord would not be in breach. Further, and separately, the tenant would not be in a position to claim any compensation for the obligation to diligently repair implied by s 57(1), because no notice had been given.
[126] As that simple example shows, it is possible to have two (or more) factually related but separate breaches arising. If a breach on the part of the landlord were proven, compensation would be assessed from the time each breach arose, and taking into account the matters in s 122(3).
[127] The Tribunal's decisions in this case need to be considered in that light. It does not matter whether the Tribunal first considered the alleged breach of the obligations implied by s 57(1) or s 48(1)(a), provided that each was separately considered according to its terms and relevant facts. In each case the most convenient course for the Tribunal to take depended upon the facts. Taking into account the large number of claims and the relatively limited, indeed minor, nature of many of them, in instances where two or more allegations of breach were factually inter-related, and relied upon the same factual findings, it was not inappropriate for the Tribunal to give reasons on both issues together, and in summary form.
[128] Even if the Tribunal misstated or conflated some of the notice requirements in its analysis of Part 7,[105] the tenants did not identify any particular decision of the Tribunal in relation to an item of repair which was affected by legal error as a result. A fair reading of the part of the Tribunal reasons in which it determines each of the table of repair items for which compensation was sought[106] does not disclose that the Tribunal failed to appreciate the differences between the nature of the breaches alleged based on s 57(1), s 48, or s 49. On the contrary, the Tribunal appears to have approached each of the alleged breaches separately and on/to terms. For example, when assessing the claim for the loose latch on the laundry door at Lot 22, a claim for compensation for breach of s 49 of the RTA, the Tribunal expressly acknowledged and accepted the tenants' argument that s 49 did not include a statutory requirement for notice.[107] The Tribunal went on to state that notification could be a relevant consideration in a decision as to whether the landlord had taken "reasonable steps" to maintain the security device as required by s 49(1) which was a relevant consideration. There is no error of law apparent in that analysis_._[108]
[129] Leave to appeal is granted, and the ground of appeal is dismissed.

[80]

[130] This proposed ground of appeal is framed at a very high level of generality. The question whether the landlord acted with reasonable diligence within the meaning of s 57(2)(b) is a question of fact. The answer will depend on the circumstances.
[131] The one decision which is said to be affected relates to 2019 table of repairs Lot 67 item (g). This concerned a broken door handle and lock on bedroom 4. The Tribunal explained why it did not accept the evidence of Mr Brown[109] as to the date of notification of the problem and found that notification of the need for repairs was given on 25 October 2019. The Tribunal also found that repairs were made by no later than 3 December 2019. The Tribunal held, based on those findings, that there was no failure to act with reasonable diligence on the part of the landlord.
[132] The tenants complain that the Tribunal must have misunderstood what reasonable diligence was because the landlord's evidence was that (a) according to the author of the 2017 manual the landlord would expect a repair of that type to be effected within 10 days; (b) the landlord sent housing maintenance officers to Laramba every week; and (c) the housing maintenance officers were capable of remedying such an issue. The tenants say that in those circumstances the landlord cannot have acted with reasonable diligence. The tenants further argue that the Tribunal did not give adequate reasons because it failed to demonstrate that it had considered what reasonable diligence was in the context of the evidence set out above.[110] I do not agree.
[133] The Tribunal's findings about Lot 67, repair item (g), need to be read with the Tribunal reasons under the heading "Reasonable Diligence".[111] In that part of the reasons the Tribunal explains why it did not accept that the time frames set out in the landlord's Maintenance Procedures Manual were determinative. The Tribunal said that the timeframes in the Manual would often be unachievable and found that the purpose of the Manual was to create a system of prioritisation rather than a time-frame for completion of remedial works.[112]
[134] The Tribunal also referred to the evidence of Ms Bell, an employee of the landlord, accepting her evidence that the times given in the Manual were not "hard and fast" and that there were a lot of reasons why effecting repairs in a remote community such as Laramba could take longer. The Tribunal set out a list of matters which might impact a particular matter.
[135] The Tribunal did not attempt to define "reasonable diligence". There was no need to do so. However, the phrase "reasonable diligence" does not mean that the landlord was required to do everything possible. The landlord's obligation was to take all steps that a reasonably prudent landlord would take in the circumstances.
[136] Whether the landlord acted to repair any item with reasonable diligence was a question of fact. The Tribunal's assessment of the evidence and application to the provision clearly demonstrates that it understood the application of the law to that task, and the reasons given were adequate.
[137] Leave to appeal is refused.

[82]

[138] Despite the broad wording of this ground of appeal, the tenants pointed to only two decisions in which the Tribunal is said to have failed to consider, where a breach of the s 48(1)(a) habitability obligation was not made out, whether there had been a breach of the landlord's duty to repair under s 57(1).
[139] The first decision concerns the claim made in relation to 2019 Table of Repairs Lot 67 item (q) relating to a leaking and missing shower head in one of the two showers in the bathroom. Mr Brown had given evidence that the tenants did not use the other shower in the bathroom because it was dirty.[113] The Tribunal found that it was unable to make a finding as to when the shower head was damaged or fell off because there was insufficient evidence. However, the Tribunal did not accept Mr Brown's evidence that the issue arose in 2018 and that he had given notice of it then because the President found that Mr Brown was not a reliable witness for the reasons given at [161] of the Tribunal decision. The Tribunal found that the landlord was notified of the need for repair on 25 October 2019, by the tenants' lawyers, and the repair was carried out on or about 3 December 2019, a delay of around five weeks.
[140] The Tribunal went on to find that, even if the missing or damaged shower head made the premises not habitable (which the Tribunal did not expressly find) that situation was caused by the tenants' failure to notify the landlord of the need for repair. Therefore, the Tribunal held that there was no breach of the landlord's obligation to ensure the premises were habitable as a result of the missing shower head.
[141] Having made that determination, the sole question in relation to the claim of breach pursuant to s 57(1) was whether the landlord had acted with reasonable diligence in effecting the repair. The Tribunal reasons do not expressly address that question. The landlord argued that it was implicit in the Tribunal's finding that the landlord was not in breach because any lack of habitability was caused by a lack of notice of the need for repair by the tenants, which was a condition of the allegation of breach of the term implied pursuant to s 57(1).
[142] A lack of habitability may arise because a landlord fails to act with reasonable diligence. If so, the circumstances will be outside the bounds of the qualification in s 48(2)(b) because the cause will not be the tenant's failure to notify, but the landlord's lack of diligence in effecting the repair. The cause of the problem in this case was that the shower head was not replaced after it had broken off.[114] Therefore, once the Tribunal had found that there was no breach of s 48(1)(a), because the failure was caused by the tenants' failure to notify the landlord of the need for repair, it was implicit in that finding that there was no notification as required by s 57(2). It is implicit that the Tribunal found that repair of the shower head within five weeks was a repair carried out with reasonable diligence.
[143] The second decision complained of, 2019 Repair Table Lot 67 item (r), involved a claim for a blocked drain in the outside shower area. The Tribunal found that the drain was blocked due to an act of the tenant, namely a failure to clean the shower area, and the presence of items of rubbish. The Tribunal's reasons refer to the photograph of the shower at Exhibit Book 3, volume 1, page 5421, dated 9 June 2020.[115] The job card, of which that photograph is part, says "shower blocked" and "plunged to clear".[116] In the box headed "cause" the document reads "tenant responsibility". The Tribunal found that the most likely cause of the fact that the shower did not drain was the tenants' act or omission, namely, failure to clean and placing items of rubbish in the area. Therefore, the Tribunal held that the landlord was not in breach of the habitability obligation because the failure to have a working shower was caused by an act or omission of the tenants.
[144] The Tribunal also stated that "The landlord's obligation to ensure habitability is subject to notification under section 48(2)".[117] That statement is not correct. A tenant's failure to notify qualifies the obligation of the landlord such that it is not a breach of the habitability condition if the breach was "caused by" the lack of notification. Lack of notice which is not causative of the failure to ensure habitability is not relevant. However, the statement by the Tribunal was, in context, a shorthand reference in the course of a long judgment in which the President had demonstrated a proper understanding of the need for the causal connection required by s 48(2)(b). The primary basis for rejection of the particular claim was that the failure to ensure habitability was caused by an act of the tenants. The secondary basis was that if the premises were not habitable by reason of the blocked drain to the outside shower, that situation had arisen because the tenants did not notify the landlord in order to get the blockage cleared. The Tribunal therefore found that the continued state of blockage was caused by the lack of notice. That circumstance should be seen in the context of the primary finding that the cause of the blockage was the act or omission of the tenants.
[145] The Tribunal did not make any express findings as to the date of the repair or whether that involved a failure by the landlord to act with reasonable diligence to repair the shower. Reasonable diligence involves consideration of more than time. For example, the Tribunal may take into account the actions of the parties, including whether there have been repeated relevant breaches by the tenants.
[146] Further, when a breach is found and the Tribunal turns to consider whether any compensation should be ordered pursuant to s 122, the Tribunal is expressly required to take into account whether the claiming party has complied with their obligations under the tenancy agreement, in respect of which the claim is made.[118] The landlord argued that there was no reasonable prospect of this claim succeeding because the problem was caused by the failure of the tenants to clean the shower and, possibly, by misuse of that drain as the tenants had been found (Lot 67, item (l)) to have misused other drains causing them to block. However, that consideration does not arise in this appeal, which is concerned only with the Tribunal's findings as to breach.
[147] It is necessarily implicit in the Tribunal's findings as to the dates upon which the housing maintenance officers attended, by reference to the documents referred to, and the finding of the date of notification that the Tribunal was satisfied that the landlord was not in breach of the requirements to act with reasonable diligence to repair the shower. In considering that matter the Tribunal also referred to the tenants' history of blocked drains elsewhere in the house and the evidence about that. The Tribunal was entitled to take that circumstance into account. I am not satisfied that the Tribunal failed to consider the claim pursuant to s 57(1).
[148] Leave to appeal is granted, and the appeal is dismissed.

[85]

[149] This ground of appeal raises two separate issues concerning the Tribunal decisions on four 2019 repair table items for which the tenants sought compensation for breach of the landlord's obligation to effect repairs and maintenance with due diligence. Each of the four claims was dismissed by the Tribunal. In each case the Tribunal found that notice was not given as soon as reasonably practicable as required by s 58(1) of the RTA.
[150] Section 58(1) makes it a term of a tenancy agreement that a tenant must give notice to a landlord of a requirement for repairs or maintenance as soon as reasonably practicable after becoming aware of the need for the same. Unless the landlord requires the notice to be in writing, the tenant may give notice orally. Pursuant to s 122(2)(b) no claim for compensation for breach of a landlord's duty to repair may be made unless notice has been given in accordance with s 58(1).
[151] The first impugned decision relates to Lot 22, issue (a).[119] This was a claim for compensation for failure to diligently repair a shuddering noise emanating from the plumbing in the house. The Tribunal found that the issue arose sometime in 2018, that the landlord was notified on 25 October 2019, and that the problem was repaired by 13 November 2019. The Tribunal noted that no noise was evident in a recording made at the house on 9 December 2019 and inferred that the repair was effected before then. The Tribunal found that the need for repair was not notified as soon as reasonably practicable because the tenant could have notified the landlord when plumbing works were undertaken in the bathroom in 2018 or, at least, when inspections were carried out in August, September and October of 2019.
[152] In coming to this conclusion, the President found that it was "not easy" for Mr Jack to report the need for repairs. This was an acknowledgement of Mr Jack's particular circumstances. Mr Jack was a disabled and illiterate man living alone, for whom English was an additional language. His English was poor, and he required an interpreter when giving evidence before the Tribunal. The Tribunal's finding that Mr Jack could have reported the problem when the landlord or its representatives attended the premises, as opposed to other methods, such as direct to the landlord via telephone or written communication, impliedly acknowledges that written or oral communication was unlikely to be reasonably practicable for Mr Jack. There was also evidence before the Tribunal that a housing maintenance officer attended at the Laramba community every Tuesday and received notifications as to the need for repairs and maintenance from tenants on those occasions.[120]
[153] The second decision relates to Lot 22 repair item (d). The claim relates to a loose tap in the kitchen of the house. The Tribunal did not accept the "broad assertion" of Mr Jack that he reported the issue in 2018 because his evidence on the question of notification was found to be generally unreliable, as discussed above.[121] The Tribunal found that the need for repair was recorded in an inspection report made by the landlord on 11 September 2019 (indicating that the landlord was on notice from at least that date) and was also notified by the tenant's lawyers on 25 October 2019. The tap was repaired on 31 October 2019. The Tribunal found that, if the issue arose some time in 2018 (which was asserted by the tenant but was not accepted by the Tribunal given the findings as to the unreliability of Mr Jack's evidence), the repair was not notified as soon as reasonably practicable after the tenant became aware of the need. The Tribunal also found that the landlord acted with reasonable diligence to repair the tap once notified.
[154] The third decision was in relation to Lot 63 repair item (d).[122] It concerns holes in the exterior mesh of that house. The Tribunal found that the tenants agreed that the damage happened in 2015, that it was first notified to the landlord on 25 October 2019, and that repairs were completed on 14 December 2019. Based on that timeline, the Tribunal found that the tenants did not notify the need for repairs as soon as reasonably practicable, and that the landlord acted with reasonable diligence to repair the mesh once it was notified.
[155] The fourth decision was in relation to Lot 67 repair item (a) which related to an adjustment to the front door, which did not fit into its frame. The Tribunal noted Mr Brown's evidence that he told the landlord about this problem in 2018, but did not accept his account. The Tribunal found that the landlord was notified on 25 October 2019 and the door was repaired no later than December 2019. On that basis the Tribunal found that the landlord did not fail to act with reasonable diligence to carry out repairs once notified.
[156] Each of the decisions challenged involved findings of fact. The questions of law said to arise are that the Tribunal failed to apply the correct law[123] and, in addition, failed to afford the tenants natural justice by failing to take into account every issue of significance.[124] The tenants' complaint at Ground 7(b) is that the Tribunal did not properly assess whether notification was given "as soon as reasonably practicable" because there was a failure to take into account the tenants' lack of phone or internet service, illiteracy (or limited literacy), when the tenants became aware of the issue and that the tenancy agreement misdirected them about whom they could notify that repairs were required.
[157] The phrase "as soon as reasonably practicable" is not defined in the RTA and there is no guidance as to factors to take into account. In Sneddon v Minister for Justice[125] the Full Court of the Federal Court said that there are three elements to the composite expression. The first was that the word "practicable" meant "capable of being carried into action; feasible", something which the Court said identifies a thing that is able to be put into practice and which can be effected or accomplished. The second element was the qualification "reasonably" which limits or qualifies what would otherwise be an absolute obligation, introducing an assessment or judgement of a period which is appropriate or suitable to the purpose of the legislative scheme. Finally, the words "as soon as" import a temporal element, directing attention to taking action without delay once it is reasonably practicable to do so".[126]
[158] As to ground 7(a), the tenants' first argument was that the Tribunal's misunderstanding of the phrase "as soon as reasonably practicable" was apparent from the reasoning of the Tribunal in relation to a different question, namely whether the terms of the written tenancy agreement for Lot 67 and the term implied pursuant to s 58(1) were "to the same effect".[127] That part of the Tribunal's reasons[128] show that the President accepted, at [75] of the reasons, that "practicable" and "possible" are not the same. He then went on to find that the qualification of "reasonable" in each phrase meant that the phrases "reasonably possible" in clause 7.1(a)(iii) and "reasonably practicable" in s 58(1) of the RTA were to the same effect in the context he was considering.[129] That issue is discussed below in relation to cross appeal ground 3.
[159] The focus of the President's reasoning in the passage referred to was whether the two terms were "to the same effect". That does not mean that, when the President came to consider the question of whether the tenants had given notice of the need for repairs as required by s 58(1) that he did not apply the correct legal test. An examination of the reasons (discussed below), shows that the Tribunal understood and applied the test correctly, irrespective of whether his conclusion as to whether the term of the Lot 67 tenancy agreement was "to the same effect" as the term implied by s 58(1) was correct.
[160] In the reasons, the Tribunal correctly identified the s 58(1) test as "as soon as reasonably practicable" in its discussion of the scheme of the RTA at [43] of the reasons, and at consideration of 2019 Table of Repairs Lot 22, items (a) and (d) and Lot 63 item (d). It was not necessary for the Tribunal to repeat the test every time it was referred to. In my view, read in context, the Tribunal had firmly in mind the correct test when applying it. Insofar as the discussion of the different wording of the Lot 67 tenancy agreement and s 58(1) is relevant to this issue at all, in my view the Tribunal compared the wording of the Lot 67 tenancy agreement against the s 58(1) standard, not the other way around.
[161] Counsel for the tenants also argued that the Tribunal left out the word "reasonably" when considering s 58(1) at a few points in the reasons and that that was demonstrative of error. I identified that this occurred in the reasons at paragraph [68] and in the decision in relation to Lot 63 item (d). On every other occasion when applying the test in s 58(1) the Tribunal used the phrase "reasonably practicable". The two occasions upon which the President did not use the more compendious phrase were obviously a slip (or shorthand) when read in the context of the reasons as a whole and do not demonstrate that a wrong legal test was applied.
[162] It was further argued that the Tribunal misconstrued the word "practicable" by stating that notice was to be given "with reasonable haste" and therefore replacing the word "practicable" with "haste". This is in my view a rather tortured misreading of the Tribunal reasons. What the Tribunal said, in one place at [78] of the reasons, was "The requirement is that notice be given with reasonable haste. The key requirement is reasonableness." That comment was in the context of the discussion about whether the wording of the Lot 67 tenancy agreement was to the same effect as s 58(1), discussed above. It was not a finding about the test to be applied pursuant to s 58(1) and how it operated. Second, the discussion was clearly a reference to the temporal aspect of the compound expression, as noted in Sneddon. While there may be some infelicity of expression, this passage of the reasons, about a different issue and where the Tribunal was clearly grappling with the meaning of the phrase as a whole, does not provide a basis to infer that the Tribunal misunderstood the import of the term implied by s 58(1).
[163] In relation to ground 7(b) the tenants argue that the Tribunal failed to undertake the "fact intensive" assessment required because the matters set out were not considered. There was also a submission that the tenants were denied natural justice for the same reason.
[164] I do not accept either submission, for a number of reasons. First, the suggestion that the Tribunal should have taken into account that the tenants of Lot 67 were misled by the definition of "landlord" in the tenancy agreement[130] in circumstances where their evidence was that they did not receive, read, or understand it is untenable. It was irrelevant because, on the facts the tenants did not consider the agreement, whether they received a copy or not. Second, as discussed above, the Tribunal did take into account the limited telephone or internet reception at Laramba in making findings that it would not be easy for Mr Jack to contact the landlord and that there were housing maintenance officers in the community on a weekly basis. Third, the Tribunal was well aware that the tenants were not literate or had limited literacy, including because some of them gave evidence using an interpreter, and the Tribunal explicitly referred to this evidence in relation to the lease documentation and preparation of the unattested declarations.[131] Fourth, as described above, the Tribunal did make findings about when the tenants became aware of the need for maintenance, based upon all of the evidence, including consideration of the tenants' own evidence in each case, which was that they became aware of the various problems at particular times. There does not appear to have been any dispute at the hearing about the fact that the tenants were living in the premises and aware of the problems as they arose. To the extent that Mr Jack was away for medical treatment at any time, the tenants did not point to any decision relating to a particular repair item which could have been affected by that circumstance. Finally, there was direct evidence from Mr Brown and Ms Pepperill that they had contacted the landlord in relation to repairs on a 1800 number.[132]
[165] As to the tenants' argument that the tenancy agreement at Lot 67 directed the tenants to give notice to the wrong group of people, I do not accept that submission. The tenants' evidence was that they did not ever receive or read the document. In those circumstances it is impossible to see how the wording of the tenancy agreement, irrespective of its legal import, could have affected the determination of the question of whether the tenants gave notice as soon as reasonably practicable.
[166] Whether a tenant has notified the landlord in relation to each repair item "as soon as reasonably practicable" is a question of fact in each case. The possibility of another finding, where reasonable minds might differ as a matter of degree, does not change that. Further, a wrong finding of fact is not sufficient to demonstrate an error of law.
[167] Neither of the proposed grounds identifies a question of law and there is no arguable basis for a denial of natural justice. Leave to appeal on this ground is refused.

[89]

[171] In coming to that conclusion, the Tribunal made findings of fact about the condition of the kitchen, the notifications made and their dates, and the actions taken by the landlord by way of pest treatment.[135] The question of causation of the cockroach infestation for the purpose of s 48(2) was a question of fact. It was independent of any finding that the premises were in an "unreasonably dirty condition" for the purposes of a breach of s 51(1)(a) by the tenant, but not inconsistent with such a finding.
[172] The Tribunal's finding that the tenant was in breach of s 51(1)(a) appears to have been relied upon as part of the context of the consideration of the alleged breach by the landlord of s 48(1)(a). It was not, on a proper reading of the Tribunal reasons, a finding by the Tribunal that the landlord was not in breach because the tenant was in breach of another obligation under the tenancy agreement. So much is apparent from the Tribunal's reference to the longstanding problems with cockroach infestations as manifest in the inspection reports referred to in the Tribunal reasons, and the direction given by the landlord to the tenant on 26 November 2019 to rectify the problem.[136] The discussion by the Tribunal of the tenant's obligations need to be seen in that light. In other words, the action taken by the landlord was taken because of the actions of the tenant, which happened to be in breach of his obligations pursuant to s 51(1)(a), and was relevant to the question of whether the cockroach infestation was caused by the tenant. However, it was not necessary for the Tribunal to find a breach of s 51(1)(a) to find that the cockroach infestation was caused by the failure of the tenant to remove food scraps and other rubbish from the kitchen.
[173] Lot 63 repair item (k) concerned the lack of a stove in that house, and the presence of mice and cockroaches. The landlord was alleged to be in breach of s 48(1)(a). The Tribunal accepted that the lack of a stove in a house would mean it was not habitable. Findings of fact were made that the landlord had installed three stoves in this house over a period of seven years. Further findings were made as to notifications of the need for repair made by the tenants, and inspections and repairs conducted by the landlord. The Tribunal found that the lack of a stove in the premises was caused by an act or omission of the tenants, which was found to be the tenants' failure to maintain the appliances supplied, and in particular to keep them clean. This was a finding of fact. The Tribunal found that the landlord acted reasonably and made a "genuine attempt" to ensure habitability by replacing the stoves on three occasions. There is no reference to a breach of s 51(1) in this part of the Tribunal reasons.[137]
[174] Lot 67, repair item (k), concerned an allegation that the grill section of the oven was not working. It was an alleged breach of the landlord's duty to maintain the premises in a habitable condition. The Tribunal made findings of fact about when the appliance was working and notifications made and the dates of various repairs/replacements effected in the period May 2015 to April 2020. The Tribunal found that the issues arising with the stove in Lot 67 were not a result of reasonable wear and tear but were due to the failure of the tenants to keep the appliance clean and not to damage it. These were findings of fact. The Tribunal also found that the stove had at some point after 20 June 2017, but before August 2019, been moved outside. The Tribunal found that these combined acts of the tenants caused the failure to provide a stove, and the resulting lack of habitability, and therefore the landlord was not in breach of s 48(1)(a).[138] There was no mention of s 51(1) in the Tribunal decision in relation to this item.
[175] The Tribunal then went on to consider whether the landlord was in breach of the obligation to repair implied by s 57(1), on the basis that the Tribunal had the view that, even though the damage was caused by the tenants, once the landlord was notified it was under an obligation to effect a repair. For one of the relevant periods, 26 April 2017 to 22 June 2017, the Tribunal found that the landlord had not acted with reasonable diligence to repair the stove once notified it was inoperative and therefore was in breach of the duty to repair diligently for that period.
[176] Once the factual finding was made that the cause of the lack of an oven or stove was the act(s) or omission(s) of the tenants, the landlord was not in breach of the RTA for so long as that cause remained operative. Because s 57(1) is subject to all of Part 7, including s 48, there could be no claim for failure to repair with reasonable diligence during a period when the acts or omissions of the tenants were the cause of the problem. From a policy perspective, and noting that these things are always a matter of fact and degree, it would be unfair if a landlord who is not in breach of the habitability requirement, because damage was caused by an act or omission of the tenant, is subject to the obligation in s 57(1) while the tenant's act or omission is the cause of that circumstance.[139] The question of whether the cause was the tenants' acts or omissions at any point in time is one of fact.
[177] Lot 63, repair item (m) concerned a fly infestation in the kitchen sink, said to be due to a breach of the landlord's obligation to maintain the premises in a habitable condition. The Tribunal found that the evidence showed,[140] that the oven and kitchen were very dirty and that fat and food scraps were routinely washed down the sink causing blockage of the drains. The Tribunal therefore found as a fact that the fly infestation was caused, or substantially caused, by the actions of the tenants in not keeping the kitchen clean. Therefore, the Tribunal found that the fly infestation was caused by an act or omission of the tenants and the landlord was not in breach of s 48(1)(a).
[178] The Tribunal also found in relation to this item, that the tenants were in breach of s 51(1) in that the premises were kept in an unreasonably dirty condition. That was a contextual finding, as discussed above in relation to Lot 22 item (f). It was not a finding which was required in order for the Tribunal to find that an act or omission of the tenants caused the fly infestation, nor does it indicate that the Tribunal applied the wrong test in reaching that conclusion.
[179] The tenants also argued that the Tribunal misunderstood the terms of s 51(1)(a) by equating the phrase "not... unreasonably dirty condition" with "reasonably clean condition". There is no doubt that "unreasonably dirty condition" involves a different standard than "reasonably clean condition". In the discussion of 2019 Table of Repairs Lot 67 item (k) the Tribunal said: "Any falling short of the standard of habitability has arisen due to the failure of the tenants to maintain the premises in a reasonably clean condition and not to permit damage to the premises". That comment was in the context of a finding that the problem with the oven grill was caused by an act or omission of the tenants for the purposes of s 48(2)(a). It was not a finding of breach pursuant to s 51(1)(a), which was not a matter the Tribunal was required to decide. Nor was a finding that the premises, or the oven and grill, was in an "unreasonably dirty condition" a necessary standard for the finding the Tribunal made as to the cause of the problems with the oven/grill.
[180] The findings as to causation of the various "habitability" items are findings of fact. The Tribunal did not impermissibly rely upon s 51(1)(a), or a misunderstanding of the terms of that provision or of the tenancy agreement, in determining the relevant issue.
[181] Leave to appeal on this ground is granted and the appeal is dismissed.

[97]

[184] The tenants argued in this appeal that the Tribunal erred in law in that it applied s 48(2) as if it: (a) included the same qualification as to notice as s 57(2) of the RTA; (b) adopted an interpretation of s 48(1) which impermissibly imported a "reasonable steps" requirement as in s 49; (c) impermissibly introduced a "reasonableness qualifier" to the "risk of injury to health" element of the habitability requirement in s 48(1)(a); and (d) impermissibly qualified the word "ensure" in that section.
[185] The tenants' submissions in relation to this ground identified three decisions of the Tribunal which are said to be infected by these errors, namely 2019 Table of Repairs Lot 67, items (h) and (l) and 2022 Table of Repairs Lot 63, item (b).[144] In each case, the Tribunal dismissed the claim on the basis that the landlord was not in breach of the obligation to ensure the premises were habitable, having regard to the reasonable actions of the landlord.[145]
[186] Grounds 9(a)(ii) and (iii) and (b) cannot succeed as they are premised upon an argument which is inconsistent with the reasoning of the Court of Appeal in CEO (Housing) v Pepperill. The Tribunal did not have the benefit of that decision, however the approach adopted at [42], [116], and the analysis at [165] - [166] of the Tribunal reasons, does not indicate that the Tribunal was in error as to the law by applying a standard of reasonableness to questions of health and safety, as well as reasonable comfort, for the purposes of s 48(1)(a).
[187] The tenants submitted[146] that CEO (Housing) v Pepperill, particularly related to the meaning of "ensure", and was at odds with authority of other intermediate courts of appeal. I do not accept that that submission is correct, and in any event this Court is bound by the decision of the Court of Appeal.
[188] That leaves the question of whether the Tribunal misconstrued s 48(1)(a) by importing a requirement for notice of the type required by s 57(2). I agree with the tenants' submission that the focus of s 48(1)(a) is the question of whether the landlord's failure to comply is caused by either an act or omission of the tenants, or the tenants' failure to notify the landlord of repairs required to the premises. The notice requirement in s 57(2) works in a different way because the provision of notice in that case is an essential element of the establishment of a breach by a landlord. Plainly, the landlord cannot be required to carry out repairs or maintenance if they are unaware of the need.
[189] The notice referred to in s 48(2)(b) is of a different character. It conditions the obligation of the landlord to ensure that premises are habitable. The question is not whether notice is given, as with s 57(2), but whether the tenants' failure to give notice has caused the lack of habitability. As I attempted to show in the example I gave above,[147] a habitability issue can be caused by a tenant's failure to notify of the need for repairs or maintenance. The comments in the Tribunal reasons at [52], were directed only to that situation and should be understood accordingly. To the extent that the Tribunal reasons might be interpreted as stating a broader proposition that there could never be a breach by the landlord of their obligation to ensure premises are habitable where notice had not been given by a tenant, that would not be correct. However, I do not interpret the reasons in that way.
[190] The tenants argued that the provisions of s 48(2) placed an evidentiary burden upon the landlord to show that the failure to ensure habitability was caused by the act or omission or the failure to notify the tenants. I agree that that is the case. A tenant in this context also includes those for whom the tenant has vicarious liability pursuant to s 12 of the RTA, noting that ss 12(2) and (3) are implied terms of the tenancy agreement.
[191] I turn to consider the decisions impugned. Lot 67 item (h) concerned a ceiling fan which did not work properly. It was found to have malfunctioned on 25 October 2019 and was repaired on 3 December 2019. The Tribunal did not find that this was a breach of the requirement to ensure habitability because the landlord acted reasonably to repair the fan. That assessment necessarily involved consideration of the circumstances, including the time period involved. There does not appear to have been any reliance upon failure to notify given the Tribunal's findings as to causation and the date of the tenants' claim and the date of notification. It is not entirely clear what the Tribunal's reference to a time before the notification refers to. To the extent that there may have been an error in relation to the time when the fan stopped working, it was a question of fact.
[192] Lot 67 item (l) alleged a failure of habitability due to blockages in the kitchen sink. The Tribunal decision sets out the evidence which it relied upon to make the finding that the lack of function of the sink pipes was caused by the actions of the tenants in depositing, at various times, fat, paint, lint and foodstuffs in the plumbing. These were all findings of fact as to causation due to the acts of the tenants. No issue of causation resulting from failure to give notice pursuant to s 48(2)(b) arose.
[193] Table of repairs 2022 Lot 63 item (b) concerned a dangerous power point. The Tribunal found that it was reported on 5 March 2013 and repaired by an electrician the same day. The Tribunal also found that a separate problem arose with a power point on 28 April 2022 and was repaired on 7 May 2022. The Tribunal found that there was no evidence that the 2013 and 2022 problems were related. No issue of causation resulting from failure to give notice arose in relation to this claim. I am not persuaded that the Tribunal failed to apply a correct understanding of s 48 of the RTA.
[194] Leave to appeal on this ground is granted and the appeal is dismissed.

[100]

[195] Although grouped together, this ground of appeal has four separate bases. Ground 10(a) concerns the Tribunal decision that the combination of repair issues did not at any time mean that the landlord was in breach of its obligation to ensure that each of the premises were habitable. The tenants' argue that in making that finding that the Tribunal did not apply the law correctly and/or made a decision which was legally unreasonable because it did not consider the accumulation of defects in each house at all relevant times and determine whether, overall, each of the houses was habitable at those times.
[196] As the Tribunal correctly stated, an accumulation of defects can render premises uninhabitable.[148] The sorts of matters which are to be considered under the heading of an accumulation of defects can include those which, while relatively minor repair or maintenance issues in themselves, when combined mean that the premises are not fit for habitation. The Tribunal addressed this issue directly at [168] - [174] of the reasons. That part of the reasons was clearly intended to be read with reference to the detailed discussion of each of the repair items for which breach by the landlord (and therefore compensation) is claimed in the 2019 Repair Table, which immediately precedes it, and also discussion of the 2022 repair items which followed.
[197] The tenants' complaint that the Tribunal failed to engage with the accumulation issue has little force when the reasons are read as a whole. The reason for that is that very few of the repair items were found by the Tribunal to involve breaches of the landlord's obligations under the tenancy agreement in a way which would allow them to be taken into account in an overall assessment. A landlord who is not in breach of the obligation to ensure habitability of premises because the problem is caused by the act or omission of the tenant, will not be in breach because the tenant has also caused other problems.
[198] The landlord was not found to be in breach in relation to any of the items related to Lot 22. In relation to Lot 63, seven breaches were found. They were: absence of a cover on the inspection hole of the septic tank (in the yard),[149] a leaking pipe at the side of the house where a tap was removed,[150]

[102]

[199] In oral submissions, counsel for the tenants described the decision that the premises at Lot 63 were not uninhabitable as "astounding" because the air was permeated with the smell of sewage and because a small child could fall through the hole in the septic tank.[156] However the actual findings of fact by the Tribunal were that the lack of the lid was "unpleasant" but was remedied by covering the hole with a paint tin, which the tenants did.[157] Later in the reasons, the Tribunal found that there was an unpleasant smell when the septic tank was full, and that the uncovered hole was a tripping hazard.[158] There was no evidence that the hole was large enough for a child to fall down.[159]
[200] The question of whether any of the houses were not habitable due to a combination of defects was one of fact. There is nothing in the Tribunal's decision which indicates that the Tribunal failed to understand the legal import of "habitable" in s 48(1)(a). Further, noting the above summary, and taking into account the duration of each defect, the relatively minor nature of the door handle repairs, and that two of the issues were outside rather than inside the house, the Tribunal's decision that those defects in combination did not render the house unfit for habitation was not legally unreasonable.
[201] In relation to Lot 67, from the 2019 Repair Table the Tribunal found that the landlord was in breach of the duty to repair with reasonable diligence for the period 26 April 2017 to 22 June 2017 because the grill section of the oven did not work;[160] there was a missing toilet cistern lid for the period 25 October 2017 to 6 November 2019,[161] and a faulty hot water system in bathroom 1 for the period 4 October 2016 to June 2017.[162] In addition, from the 2022 Repair Table the Tribunal found that the landlord was in breach for failing to repair cracked tiles near the bathroom sink for the period 20 January 2019 to 3 December 2020.[163]
[202] Therefore, there were two relevant breaches from April to June 2017, namely the grill section of the oven and the faulty hot water system. They were not insignificant defects. In relation to the hot water system the Tribunal found that there was hot water, but it took two hours to heat up once the water in it was expended. The Tribunal found that this was inconvenient, but did not make the premises unfit for habitation. The difficulty with the claim in relation to the oven/grill was that the Tribunal found that it was caused by an act or omission of the tenants. As I have noted above, in my view while that cause was ongoing, there was no breach by the landlord. Therefore, the only defect for which the landlord was responsible was in relation to the hot water. I am not prepared to find that the Tribunal's decision was unreasonable in that respect in view of the findings as to the attempts to repair and the fact that the unit did have some, albeit reduced, functionality.
[203] For the period January 2019 until November 2019 there was a missing toilet cistern lid and some cracked tiles in the bathroom. These were both found by the Tribunal to be minor defects. It is difficult to see how they could make premises unfit for habitation, even in combination. There is no legal unreasonableness in the Tribunal's decision in that respect.
[204] The tenants did not identify the collection of accumulated defects that they say the Tribunal should have taken into account in relation to each house, nor the time periods involved in support of their argument that the Tribunal's decision on this issue was unreasonable. Simply relying upon all of the originally alleged defects without any specification, in circumstances where the Tribunal has denied many of the claims on the basis that the problem was caused by an act or omission of the tenants, is insufficient in circumstances where the tenants bear the onus of establishing the error.
[205] The second complaint under this ground appears to relate only to Lots 63 and 67,[164] although neither the ground of appeal nor the tenants' submissions made that clear. The same issue was discussed, in the context of a complaint by the tenants as to the Tribunal's reasons for the decision, in ground 3 above. The tenants argue under this ground that a person could not use the shower without a shower screen because their privacy, and therefore their reasonable comfort, was compromised if someone else wanted to use the toilet, or the laundry, at the same time.
[206] The first answer is that the Tribunal's finding was one of mixed fact and law and the reasons do not indicate any failure to understand the requirements of s 48(1)(a).[165] Second, the suggestion that the finding is unreasonable cannot be accepted. As a matter of common sense, a person who is using the shower is not going to be in the shower all of the time. Even if a shower curtain or screen was provided, it would not afford the necessary privacy if a person wanted to, for example, use the toilet at the same time. The tenants' argument on this point is itself entirely unreasonable in my view because the posited solution, provision of a shower screen or curtain, would not solve the issue which relates to the design of the bathroom/toilet/laundry of the house. Combination toilet/shower bathrooms are common. Waiting in turn to use the facilities is an ordinary incident of living in a house with other people. It does not make the house uninhabitable.
[207] The third complaint relates to the Tribunal's finding that the absence of the lid on the inspection hole of the septic tank did not breach the landlord's obligation to ensure habitability. It relates only to Lot 63. As to whether the decision was unreasonable, I am not of the view that it was, for the reasons set out by the Tribunal including that the smell was not present all of the time and that it was ameliorated by the tenants' use of the paint tin as a makeshift cover. That decision was made in the context that the Tribunal did find a breach by the landlord of the duty to repair and maintain the premises and awarded compensation accordingly. That compensation was ordered from the time when the Tribunal found that the lid was likely smashed by the landlord's contractors. Therefore, even if the Tribunal could have found a breach of s 48(1)(a), instead of a breach of s 57(1), the result so far as compensation was concerned could not have been different because of the facts. The Tribunal found that the landlord was in breach of the tenancy agreement from the time that the cover was damaged. Since the damage was caused by the landlord's contractor, no notification issue arose.
[208] The final complaint relates to the failure to provide a stove with a working grill section in Lot 67 for the period 26 April to 22 June 2017. As stated above, a breach of the tenancy agreement was found by the Tribunal and compensation was awarded. I have already said above that if the cause of the problem remained due to the acts or omissions of the tenants (damage or misuse of the appliance) then I am not convinced that s 57(1) had work to do here. However, if I am wrong about that I am not convinced that the finding of a breach by the landlord of the obligation in s 48(1)(a) rather than s 57(1) could lead to a different outcome in terms of the date from which compensation under s 122 would run in this case because the date of the breach, on the facts, was the same.
[209] Leave to appeal is granted, and each ground of appeal is dismissed.

[105]

[210] This ground of appeal relates only to Lot 22. [166] It was developed in oral submissions[167] and was put on the basis that the question of whether a residence is habitable needs to take into account the needs of the known tenant.[168] It was not in dispute that Mr Jack had a below knee amputation of one leg and that he used a prosthesis. Although the date of amputation of Mr Jack's leg was not clear, the Tribunal was satisfied that it was more likely than not that it occurred at some point during the tenancy and before April 2018.[169] It was not controversial that as the bathroom in Lot 22 had the shower head in place over the bath and that the tenant was required to get into and out of the bath when having a shower, which was difficult for him to do due to his disability.
[211] It was submitted on behalf of the tenant, that for any person with a mobility issue, it was particularly important that there not be water on the floor as they accessed the shower. This is in the context of evidence that the bathroom was, irrespective of the shower curtain issue, totally unsuitable for Mr Jack after his amputation. It was common ground that the bathroom was remodelled by the landlord before the litigation commenced, but after notice had been given, to accommodate the tenant's specific mobility needs.[170] The question for the Tribunal was whether the landlord had failed to ensure that Lot 22 was habitable within the meaning of s 48(1)(a), from the time that Mr Jack's leg was amputated until the bathroom was remodelled.
[212] The Tribunal found that, prior to the final remodelling of the bathroom, an earlier report from an occupational therapist in April 2018 had resulted in installation of a hand-held shower hose in May of that year to allow Mr Jack to shower. The evidence was that Mr Jack was utilising the hand-held shower while seated on a chair over the drain in the bathroom, and was not accessing the bath to shower, as at May 2018.[171] The Tribunal found as a fact that as at May 2018 the shower head in Lot 22 was a hand-held flexible hose, but that there was insufficient evidence to determine its condition as at 31 October 2019.[172] A shower curtain would not have assisted Mr Jack at all while he was using the flexible shower hose. Nor would it have helped him get into the bath.
[213] The argument developed by the tenant in this appeal was that the legal test to be applied is that the house is fit for habitation by all classes of people who might reasonably be expected to occupy it, including people with mobility issues. It was argued that anyone with a mobility problem, not necessarily a missing leg, would have issues launching themselves over the small wall to get into the shower and therefore required a curtain or screen to prevent water getting onto the floor.[173] I have already pointed out that the real problem was not due to the lack of a screen or curtain. The evidence showed the real problem for Mr Jack was getting into the bath at all.
[214] However, the tenant did not argue that the design of the bathroom made the premises uninhabitable overall, just that the water on the floor as a result of the lack of a shower screen or curtain made the area unsafe for any person with mobility issues. In other words, the alleged legal error of the Tribunal was a failure to assess whether there was a breach of the landlord's obligation to provide a residence which was habitable, by reference to the fact that persons with mobility restrictions could reasonably be expected to occupy the house, because the landlord did not provide a shower screen or curtain to minimise the risk of slippage on a wet floor. There does not appear to have been any evidence as to the needs of a person with mobility issues (which would presumably change depending upon their individual circumstances) or whether a shower screen or curtain, respectively, would have been more or less likely to assist.
[215] The test for reasonable comfort was considered by the Court of Appeal in CEO (Housing) v Young.[174] In that case the Court of Appeal considered the jurisprudence concerning habitability of residential premises and referred to cases in which courts had held that the question of whether a house is habitable, is one of fact, and is to be determined by reference to the standards of the ordinary reasonable person of the class of persons likely to occupy it. That is an objective standard, but circumstances can be relevant. For instance, if a landlord is providing accommodation specifically for the use of persons with limited mobility that would define the class of persons expected to occupy the residence.
[216] It is not apparent to me on a fair reading of the Tribunal's reasons that the member failed to apply the correct test. The Tribunal referred to the Court of Appeal's decision in CEO (Housing) v Young and said, at [118], that the absence of a shower screen or curtain "...may render a particular premises unsuited to a particular resident but it does not make it objectively uninhabitable.". The Tribunal clearly considered the class of persons expected to occupy the premises and was aware of Mr Jack's particular disability.
[217] The subjective assessment of habitability urged by the tenant does not represent the proper test for the purposes of s 48(1)(a). The references in the various cases refer to a broad "class" of persons who are foreseeable occupants but does not descend to the level of particularity urged by the tenant. The argument under this ground is no more than a specific example of the more general argument, advanced elsewhere on behalf of the tenants, that failure to provide a shower screen or curtain renders the premises uninhabitable. The fact that the landlord made modifications to the bathroom to accommodate the tenant's disability does not change that analysis.
[218] The tenant also advanced an argument that the landlord was in breach because the fact that a person with "mobility issues" could not use the bathroom, was not in keeping with international obligations dealing with the right to housing for people with disabilities, including as enacted in Territory legislation.[175] However, as the landlord pointed out, the interpretation urged by the tenants would impose a more onerous burden than that arising under s 25(2)(b) of the Disability Discrimination Act 1992 (Cth) which requires only that a landlord must in some circumstances permit a tenant to make reasonable modifications to a premises, at their own expense, and upon the proviso that the tenant must restore the premises to their original condition at the conclusion of the tenancy. The same obligation exists in s 39 of the Anti-Discrimination Act 1992 (NT).
[219] The tenant's argument is, leaving aside the general issue as to the lack of shower screens/curtains, that the house became not habitable for Mr Jack after his circumstances changed due to his disability. That argument is founded upon a view of strict or absolute liability as to s 48(1)(a) imposed upon the landlord which was rejected by the Court of Appeal in CEO (Housing) v Pepperill.[176] Further, as pointed out by the Court of Appeal in that case, even if premises are found to be not habitable, that does not necessarily mean that there has been a breach of the implied term at s 48(1)(a) by the landlord. In order to establish a breach the tenant must show that the uninhabitable condition of the premises, if that is established, is a consequence of the landlord's failure to take reasonable steps to ensure that the premises or ancillary property were habitable in all the circumstances of the case.[177] In this case the landlord appears to have taken steps, upon receipt of professional advice from an occupational therapist in 2018 and in 2020, to make modifications to suit Mr Jack's needs. Those modifications were not as a consequence of the landlord's obligations under the tenancy agreement. There was no evidence, or submission made in this Court, which pointed to the relevance of a shower screen or curtain as part of those modifications.
[220] The decision complained of is one of fact. No question of law arises. Leave to appeal is refused.

[107]

[221] In this ground of appeal the tenants complain that the Tribunal "repeatedly" found that there could be no breach of s 49 of the RTA unless notice had been given by the tenant to the landlord of the failure or removal of a security device. Two decisions were complained of. They relate to the loose latch on the laundry door of Lot 22,[178] and the lack of security in the windows of the bedrooms of Lot 67 following tenant installation of the air-conditioners in those rooms.[179]
[222] Section 49 of the RTA concerns the obligation of the landlord to provide premises which are secure. There are a number of obligations implied by virtue of that section, including s 49(1) which requires the landlord to take reasonable steps to provide and maintain locks and other security devices necessary to ensure that the premises are reasonably secure. As Blokland J said in Young v CEOH,[180] establishment of a breach of s 49 does not depend upon the landlord receiving notice from the tenant, unlike s 57(1). The Tribunal acknowledged that this was the case.[181]
[223] Had the Tribunal found that notice to the landlord was required before a breach of any of the landlord's obligations in s 49 could be established, that would have been an error of law. However, a fair reading of the Tribunal reasons shows that that was not the case. The decision in relation to the laundry door of Lot 22 item (l) makes it clear that the Tribunal was considering the question of whether the landlord took reasonable steps to comply with its obligation. The question of notice was a factual matter relevant to the question of whether the landlord acted reasonably. It was not relied upon by the Tribunal as either a requirement of s 49 conditioning liability, or as a defence.
[224] The Tribunal's discussion of the question of whether the landlord was aware of the problem with the windows at Lot 67 after installation of the air-conditioners (items (c), (e) and (f)), similarly occurred in the context of consideration of whether the landlord had acted reasonably as required by s 49. There appears to have been no dispute on the evidence that the windows became insecure after the tenants removed windows and inexpertly installed room air conditioning units in the spaces. The Tribunal referred to various breaches of the tenancy agreement by the tenants, as it was entitled to do as, on the evidence, the tenants' conduct was a relevant consideration.
[225] The Tribunal refers in this part of the reasons to notification required by s 52(1)(b). That section does not involve any issue of notification. The effect of s 52(1)(b) is to imply into a tenancy agreement a term that the tenant may alter or add a lock or security device, which would include a window, without the permission of the landlord, providing that the tenant has a reasonable excuse for doing so. That was a relevant consideration given that there was no dispute that the air conditioners were installed by the tenants without the landlord's permission. However, in that context the reference to s 52(1)(b) is most likely to have been a typographical error, the correct reference being s 51(1)(b). That section does impose an obligation upon the tenant to notify the landlord of damage to the premises, other than negligible damage.
[226] There was also a reference to s 58(1). In context, that reference was not a reliance by the Tribunal upon a tenant's failure to notify as a condition of establishment of a breach, or a defence to a claim for breach of s 49. It was simply an acknowledgement that the state of the landlord's knowledge, including any notification by the tenants pursuant to the tenancy agreement, or lack thereof, was relevant to the question of the reasonableness of the landlord's actions.
[227] I do not find that the Tribunal applied an incorrect understanding of the implied term of the tenancy agreement in s 49 in assessing the tenants' claims. Leave to appeal is granted, and the appeal is dismissed.

[109]

[228] This ground of appeal was referable, in the tenants' written submissions on this appeal, to 2019 Repair Table Lot 63 item (j).[182] The claim concerns a missing window in bedroom 3 of that residence. The Tribunal found that the window was damaged because the tenants removed the window and installed an air conditioner in the space. This was done without the consent of the landlord. The item was claimed by the tenants as a breach by the landlord of the habitability obligation (s 48(1)(a)) in the 2019 table of repairs. The Tribunal found that there was no breach because the damage to the window, at various stages over the period 25 October 2017 to 14 December 2019 (when the window was replaced), was caused by the tenants.
[229] The tenants' complaint is that the Tribunal considered that issue only as a habitability breach (s 48(1)(a)) and not as a security breach pursuant to s 49. The 2019 table of repairs attached to the tenants' closing submissions to the Tribunal did not refer to s 49 in relation to this item. However, the tenants argue in this appeal that the wording of issue 12[183] meant that every item marked in the table of repairs as either relating to s 48 or s 49 was required to be analysed by the Tribunal by reference to whether there had been a breach by the landlord of either of those sections. That submission must be rejected. Very simply, the vast majority of habitability claims raised no issue of security. That plain fact is borne out by the tenants' approach at trial.
[230] The landlord argued that, notwithstanding issue 12, the tenants did not make a claim for breach of s 49 in relation to the 2019 table of repairs Lot 63, 2019 item (j). The landlord further argues that to claim that breach now is contrary to how the tenants ran their case at trial.
[231] A review of the tenants' closing submissions to the Tribunal shows that the tenants' approach of first focusing upon whether the landlord was in breach of a term implied by s 48 or s 49, before considering a breach of a term implied by s 57 was predicated upon the tenants' view that compensation for a breach of s 57(1) could only flow from the date of notification of the need for repair, whereas compensation for a breach of s 48 or s 49 is not so constrained.[184] The tenants argued in their closing submissions to the Tribunal, that "If an issue is a security or habitability issue, the compensation period starts from the day the issue arose".[185]
[232] As the High Court made clear in Young v CEO (Housing) compensation pursuant to s 122 of the RTA is not confined by common law principles.[186] It is a matter of statutory interpretation having regard to the nature and purpose of the obligation with which there has been a failure to comply, and the considerations and exclusions set out in ss 120 and 122 of the RTA. It is very difficult to envisage a situation where a landlord would be obliged to pay compensation from a date earlier than that on which they were found to be in breach of the tenancy agreement, despite the date on which the "issue" (assuming that means the damage or need for repair) occurred. Because ss 48 and 49 involve a range of considerations, where damage is caused by the tenant (or those for whom they are vicariously liable)[187] it is quite possible that a security device could be broken, or premises not habitable, for a period after damage occurs but during which the landlord is not in breach of the tenancy agreement.
[233] Where a failure to ensure habitability is caused by the tenant's failure to notify of required repairs (so as to come within s 48(2)(b)) facts relevant to notification will obviously be crucial. Whether the landlord is in breach of the tenancy agreement will depend upon whether they act reasonably to ensure habitability. Once the landlord is aware of a habitability issue the tenants' failure to notify may no longer be the cause. The date of any breach will obviously postdate the damage in that scenario, possibly by a considerable margin. Similarly, where a tenant, without the landlord's knowledge, damages a security device (assuming the landlord has otherwise taken reasonable steps to maintain security), the date of a breach (if any) will be the date upon which the landlord failed to take reasonable steps to provide and maintain the locks and/or security device, not the date of the tenant inflicted damage. Whether the landlord acted reasonably in either scenario will depend on all of the circumstances. The state of the landlord's knowledge is likely to be one relevant factor. That is not to say that it conditions a breach.
[234] This dispute is another example of the less than ideal approach taken to the procedural management of this proceeding. The layering of the list of issues upon the alleged breaches set out by reference to their facts in the repair tables made the proceedings more complicated than needed to be the case.
[235] The relevant part of issue 12 reads:

[118]

[242] This ground of appeal concerns the breach alleged in relation to 2019 Repair Table Lot 63 item (r), relating to the living room window and security screens.[193] The tenants' core complaint is that the Tribunal acted unreasonably in finding that the landlord failed to take reasonable steps to maintain the window as a security device by failing to replace a plastic screen which covered a window with a glass pane, between October 2017 and December 2019.
[243] The Tribunal found that when Lot 63 was initially rented to the tenants the condition report of 8 June 2012 noted that security screens were missing from one window and that sometime between 8 June 2012 and 25 October 2017 a security screen was installed. However the part of the Tribunal decision which is impugned here is not the absence of a security screen, but a window pane.
[244] The Tribunal also found that when the premises were inspected on 25 October 2017 it was noted that the window in the lounge needed to be secured. Repairs were effected by 21 November 2017 by resecuring a white plastic screen which had been substituted for glass in one side of the sliding window. The Tribunal also found that there was a need to secure the window, which was identified as "loose" in an inspection on 14 August 2019. A request for a repair to install a glass pane in the window, in lieu of the plastic one, was made on 31 October 2019 after the tenants had notified the landlord of the issue through their lawyers. Temporary repairs were effected on that date and a new glass window pane installed on 14 December 2019.
[245] The Tribunal found that the landlord was not in breach of s 49, because the landlord took reasonable steps to provide and maintain the security device, that is the window, by inserting the plastic panel. The Tribunal found that at all times the window was covered, although the cover was loose at the times referred to above. Despite the presence of the plastic screen, the Tribunal found the window posed no greater security risk than a glass pane window would have done. That was a finding of fact. Apart from the two instances where the panel was 'loose' referred to above, the tenants did not point to any evidence that the window was not secure.
[246] Considering the claim separately pursuant to s 57(1), the Tribunal awarded compensation for failure to diligently repair the window by replacing the glass between 25 October 2017 and 14 December 2019.
[247] The landlord's state of knowledge is relevant to the reasonableness of the landlord's actions. In this particular case, the landlord was aware that the window was covered by a plastic panel. No issue of notification arose and therefore the date for assessment of compensation was not affected by whether the breach was of the obligation in s 49 or s 57(1). The breach of s 49 could only have operated from the time when the landlord failed to take reasonable steps to secure the window. The earliest date for that was found by the Tribunal to have been 25 October 2017.
[248] There is nothing in the Tribunal's reasons which leads to the conclusion that the President failed to correctly understand and apply the law as to the landlord's obligation to provide reasonable security in accordance with the tenancy agreement. The reasons were clearly directed to whether the landlord had taken reasonable steps to provide and maintain the security device (window).
[249] The finding which is challenged on the basis of unreasonableness, that the landlord took reasonable steps by installing a plastic panel in lieu of a glass pane, is one of fact. A finding of fact cannot be disturbed on appeal on a question of law on the basis that is wrong, perverse, against the evidence or the weight of the evidence, or contrary to the overwhelming weight of evidence.[194] Nevertheless, in some circumstances an extreme deficiency in reasoning, such as a fundamental misapprehension of the evidence, can result in a conclusion of unreasonableness. However, there is considerable need for restraint. It should be borne in mind that:

[120]

[250] Counsel for the tenants suggested in oral submissions that the President may have been confused about two adjacent windows in the lounge at Lot 63, one which was missing a security screen and one which was not. Counsel referred to the problem being the lack of a solid window, rather than the lack of a security screen.[196]. The tenants' written submissions argued that the Tribunal was unreasonable in finding that there was no evidence of a missing security screen when there was photographic evidence of "exactly" that.[197]
[251] The photograph referred to by the tenants at EB 5180 is the same photograph referred to by the Tribunal in the reasons.[198] It was said to have been taken on 21 November 2017. That page of the exhibit book contains three photographs of a window. In each photograph the security screen is intact but in the middle photograph the glass pane to the right of the screen appears to be missing. The Tribunal found that the window was entirely replaced by 14 December 2019. A photograph taken on 14 January 2020[199] shows the replaced window. The security screen, covering the panel of the window which opens is on the opposite side to the security screen shown in the photograph taken in November 2017. Since the entire window was replaced in 2020, that does not necessarily mean that the Tribunal referred to the wrong window. There was no dispute that the window was replaced on or about 14 December 2019.
[252] The tenants further argued that the decision of the Tribunal that the landlord had taken reasonable steps to provide security by inserting the plastic window was unreasonable because it was "lacking in common sense" and "contrary to commonly accepted knowledge". The tenants submitted that the Tribunal found that there was no difference in security risk between a "loose" window covering made of plastic that was repeatedly described as "not secure" and a fixed glass pane.
[253] As I noted above, the Tribunal referred to evidence that the plastic pane was loose in a report from 14 August 2019, and that the plastic pane was "not secure" on 31 October 2019. As to the second instance, the Tribunal found that temporary repairs were effected on the same day. No evidence was pointed to which suggested that the plastic panel was always loose or not secure and the clear implications of the Tribunal's finding was that the plastic pane was secure at other times.
[254] The Tribunal's findings as to the state of the window from time to time are findings of fact. They were based upon the Tribunal's evaluation of the evidence as set out in the reasons. The finding that the landlord took reasonable steps was also a finding of fact. Although I can understand the tenants' criticism, I am not able to conclude that the Tribunal decision was unreasonable in the legal sense.
[255] Leave to appeal is granted but the ground of appeal is dismissed.

[124]

[261] In this ground of appeal the tenants complain that the quantum of compensation awarded to Mr Stafford and Ms Pepperill as a result of the landlord's contractor removing the concrete cover on the septic tank at their house (Lot 63), and the landlord leaving it uncovered for a period of 931 days,[204] was manifestly inadequate.
[262] The Tribunal limited the damages awarded for distress and disappointment as a result of the landlord's failure to act with reasonable diligence to repair the cover to those arising from the physical inconvenience in having to ensure that the hole remained covered (with a paint bucket) so as to reduce the tripping hazard and smell. In view of the High Court's decision in Young v CEOH, the Tribunal erred in so limiting the basis for compensation.
[263] As the Tribunal's assessment of compensation was made on an erroneous basis there is little utility in conducting an extensive examination of the cases relied upon by the tenants to advance their case of manifest excess. Each case depends upon its own facts and there appears to be a dearth of comparatives such as to enable a relevant range to be determined.
[264] For example, the tenants referred to the New South Wales decision of Foote v Hahlos (Tenancy)[205] in which tenants were awarded compensation of $4765.40, for an initial period of about six weeks, and intermittently thereafter, because a bathroom and toilet could not be used and the house smelt. Sewage had leaked onto a path at the side of the house and ran underneath a neighbouring property. Although much shorter in duration, the effects of the breach in Foote appear to be much more serious than the current case, largely because the problem was inside the house, as opposed to the yard, the extreme nature of the odour during the first six weeks, and that part of the house (the downstairs bathroom) was rendered unusable.
[265] On the other hand, in the Northern Territory case of Kopp v Aughterson[206] the Commissioner of Tenancies awarded the tenants $71.43 for the loss of use of a swimming pool for 10 days, based upon the pool component of the rent being $50 per week.[207] That decision appears to turn on concerns which are quite different to those in the present case.
[266] The compensation amount here was expressed as a daily figure. There is no requirement that the Tribunal calculate compensation by reference to an amount per day, although that approach is not necessarily wrong. The Tribunal must assess the compensation by reference to the purposes of the Act, the justice and equity of the case and the nature and purpose of the particular obligation which has been breached, taking into account the mandatory considerations in s 122(3).[208]
[267] Manifest inadequacy is a conclusion. Assessment of damages as contemplated by s 122 RTA is an intuitive process and there is not one correct answer.[209] In accordance with the principle in House v R[210] it is not enough that a court on appeal might have awarded a higher amount. It must appear that some error has been made in exercising the discretion. Such an error may not be discoverable, but can be inferred if the result is unreasonable or plainly unjust upon the facts.
[268] For the reason stated above it is not necessary to determine in this case whether the compensation awarded was manifestly inadequate. There was an error of law in the basis for the assessment of quantum for this item because the assessment was not carried out in accordance with the principles in the High Court's decision in Young v CEOH.
[269] Therefore, leave to appeal is granted, the appeal is allowed. The Tribunal's order as to quantum of compensation must be set aside and the question remitted to the Tribunal for consideration according to law.

[126]

[270] The rent for each of the tenants' dwellings was set in accordance with determinations made by the relevant Minister pursuant to s 23(1) of the Housing Act 1982 (NT) (Housing Act) which set the rent payable pursuant to the rental agreement between each tenant and the CEOH. However, the rent actually paid by a tenant from time to time was less than the determined amount where they received a "rent rebate" in accordance with the CEOH policy concerning tenants in financial hardship. This ground of appeal is about whether the amount of rent paid was as a result of a rent reduction in accordance with s 46 of the RTA.
[271] The tenants argue that the amount of rent actually paid, which was less than the rent payable in accordance with the relevant determinations and the tenancy agreement, amounted to an ongoing rent reduction, rather than a rebate. The significance of that is said to be that once rent is reduced by agreement, s 46 of the RTA provides that rent cannot be increased except in accordance with s 41. Section 41(1) provides that a landlord may increase rent only where a tenancy agreement includes both that right and either an amount or method of calculation of the increase. There is no such mechanism in the relevant tenancy agreement. The tenants argue that the result is that they paid more rent than they owed.
[272] The question of law said to arise on this ground of appeal therefore is whether the discounted rental rate paid by Mr Jack in relation to Lot 22, and by Mr Stafford and Ms Pepperill in relation to Lot 63, is properly characterised as a rental rebate in accordance with the Housing Regulations 1983 (NT) (Housing Regulations), or a negotiated rent reduction. There is also a more general complaint based upon the Tribunal's alleged failure to weigh the evidence before it.
[273] The 2019 applications made by the tenants of Lot 22 and Lot 63 each sought compensation and/or rent repayment pursuant to s 122(1) of the RTA for overpayment of rent. Overpayment of rent was alleged and compensation sought to the value of the overpayment. The amount of the overpayment was not quantified at the time each claim was commenced because the relevant records were not available to the tenants. The records became available in the course of the proceedings. At the hearing, Mr Jack was said to have overpaid his rent by $520 and Mr Stafford and Ms McNamara by $1358. The Tribunal found that there was no overpayment of rent and dismissed the applications.
[274] In Mr Jack's case, although the rent for his house was determined to be $143 per week, he was only required to pay a proportion of that amount because he received the benefit of the CEOH's policies relating to tenants who are in financial hardship. The CEOH's position, before the Tribunal and this Court was that the discounted rent amount applied because Mr Jack was given the benefit of a rent rebate in accordance with r 5 of the Housing Regulations. Mr Jack argued that the discount he received was a rent reduction not a rent rebate because the statutory conditions required in order to characterise the discount as a rebate for the purpose of those regulations were not met.
[275] Pursuant to s 23(1) of the Housing Act the rent for public housing dwellings is determined by the relevant Minister by notice published in the Gazette. Section 23(4) provides that:

[130]

[278] Mr Jack's argument in the Tribunal was that the use of the term eligible person in r 5 meant that in order for the CEOH to grant a rebate it must form the view that the person is both of limited means and not adequately housed at the time the rebate is applied. Mr Jack submitted that there was no evidence that the CEOH formed the view that the tenant was not adequately housed when granting the rebate.[211] It does not appear that this was in dispute. The evidence, from various witnesses called on behalf of the CEOH in the Tribunal, was that rebates were determined based only upon the financial means of a tenant, not upon any assessment of whether their housing was "adequate" at the time the rebate was sought.
[279] The landlord argued that the rebates were appropriately given because there is no requirement that the CEOH form a view that a person who is already a public housing tenant is not adequately housed before granting a rebate. The use of the term eligible person in r 5 was, the landlord argued, part of a composite descriptor referring to the rent capable of being the subject of a rebate. The Tribunal accepted the landlord's argument, noting that the regulations were characterised as beneficial legislation and commenting that it would be absurd if a person eligible to receive social housing could then only receive a rebate if they remained not adequately housed.[212]
[280] The Tribunal found that the rent for the entire period for Lot 22 was $143/week. The Tribunal stated that the rebates were "likely valid" and held that there was no agreed rent reduction for the purpose of s 46 of the RTA. The Tribunal also held that even if the discount was not a rebate, because the statutory terms were not made out, it was not a rent reduction.
[281] Since this matter was argued the Court of Appeal has considered the relationship between s 23 of the Housing Act, rr 4 and 5 of the Housing Regulations and ss 41, 42 and 46 of the RTA, in the decision of Badari v Minister for Territory Families and Urban Housing.[213] In very broad terms, that decision concerns the impact upon rents charged for public housing as a result of determinations made by the relevant minister under the Housing Act, together with changes to the rebate or "safety net" policy, which came into effect from and after 6 February 2023.
[282] A question arising in Badari was whether any increase in amounts payable by social housing tenants as a consequence of the new determinations, and social net policy, was impermissible because the landlord had not complied with s 41(1) of the RTA. One of the arguments advanced by the tenants in that case was the same argument advanced here as to the operation of r 5 of the Housing Regulations and s 41 of the RTA. However, that question was not directly determined in Badari, which was resolved on other grounds.
[283] The RTA and the Housing Act are intended to operate as part of a scheme for regulation of tenancies and provision of housing in the Northern Territory.[214] The Court of Appeal held in Badari that s 41(1) of the RTA does not impose any limitation upon the Minister's power to determine rents for social housing dwellings under s 23 of the Housing Act.[215] The Court of Appeal pointed out the difference between the Minister's role in determining rents and the role of the CEOH as landlord, and also that s 23(4) of the Housing Act provides that the rent is as determined by the Minister, notwithstanding any other agreement.
[284] I agree with the conclusion of the Tribunal that the descriptor "eligible person" in r 5 of the Housing Regulations is not intended to remove the right of a person who is in public housing to receive a rebate by importing the criterion that they can only do so if they remain "not adequately housed". The proposition that a person who is provided with public housing cannot then apply for a rebate based upon their straitened financial circumstances, because they are already in public housing, which they were entitled to because they were of limited financial means and not adequately housed, is absurd and contrary to the purpose of the legislative scheme of which the regulations are part. It may give rise to a situation where a person could apply for a rebate before they entered into a tenancy (and were at the time not "adequately housed"), but not once they are in place, even if their financial situation deteriorated. In context, the use of "eligible person" in r 5 refers to a person who is eligible to receive public housing and would be not adequately housed if they did not have it. The Housing Act and Housing Regulations are part of a scheme of beneficial legislation and that is a relevant factor in favour of the above interpretation.
[285] Even if that is not the case, however, on the reasoning in Badari, the CEOH has no power to give a rent reduction because that is not permitted by s 23(4) of the Housing Act. That section provides that the rent is as determined by the Minister, notwithstanding any other agreement. Therefore, except in the case of a rebate permitted by r 5, no reduction in rent can be given.[216] On either construction, there has been no overpayment of rent by the tenants.
[286] Leave to appeal is granted, and the appeal is dismissed.

[132]

[287] This ground raises a similar issue to the previous one but based upon a policy or practice of the landlord known as the "family rent agreement". That practice or procedure was one whereby individual tenants would enter into an arrangement to each pay part of the rent for a dwelling. It was argued on behalf of the tenants that these agreements amounted to a rent reduction.
[288] That argument was rejected by the Tribunal which found that the family rent agreement clearly recognised the total cost of the rent for each dwelling. The Tribunal also found that the purpose of the family rent agreement was to facilitate direct debits from the tenants' Centrelink payments and was not a determination of a sum of rent.[217]
[289] The tenants complain that the Tribunal failed to act on a correct understanding of the law and/or failed to accord the tenants natural justice because it overlooked or ignored evidence which contradicted or was "in tension with" what the Tribunal found to be an agreement as to rent between the parties.[218] I do not agree. It was not in dispute that the agreement between the various tenants and the landlord was that they would each pay a share of the rent. The Tribunal referred to that in the reasons.[219] The Tribunal found that there was no agreement to change the rent which was payable for the dwelling.
[290] Each of the documents referred to in the tenants' submissions concerns a family rent agreement. The document at EB2 2135 dated 14 October 2012, reflects both the application of the rebate policy (discussed above in ground 17) and the rent division between Mr Jack and his then partner. The earlier documents referred to by the Tribunal were different, but were to similar effect. The tenants have not pointed to other evidence which was ignored or overlooked.
[291] I am not satisfied that the Tribunal applied an incorrect understanding of the law when considering this question. The Tribunal clearly considered the tenants' evidence and arguments. There was no denial of natural justice.
[292] Leave to appeal is granted and the appeal is dismissed.

[135]

[293] The Tribunal dismissed a number of claims for compensation contained in the proceedings (particularly the 2022 proceedings) on the basis that they were not brought within three years of the date upon which the claim arose. Those claims were not part of the 2019 proceedings and appear to have come to light in the course of "exchange of material throughout the proceedings".[220] Each claim was for failure by the landlord to comply with the tenancy agreement by reference to a specific failure to "repair". Each such claim can form a separate ground of breach leading to a claim for compensation pursuant to s 122 of the RTA. Each claim requires proof of its own facts establishing first the breach and secondly matters relevant to any compensation, including as to quantum. In other words, as discussed elsewhere above, each claim is a separate cause of action for breach of the tenancy agreement.
[294] It was not in dispute before the Tribunal, or on this appeal, that the Limitation Act applied to each separate claim, or that the relevant limitation period expired three years from the date that each relevant breach, said to found a claim for compensation, occurred. It was also not in dispute that where a breach was ongoing, the breach was a continuing breach, giving rise to a new claim for compensation for each day that it persisted.
[295] The tenants argued before the Tribunal that they should be granted an extension of time in relation to all claims arising before 14 November 2016 in relation to the 2019 applications, and before 20 January 2019 in relation to the 2022 applications. As discussed above, the Tribunal rejected all applications for extension of time, on the basis that there was no "material fact" identified as required by s 44(3)(b)(i) of the Limitation Act, and that, in any event, the discretion to extend time should not be exercised in view of the substantial prejudice to the landlord due to deficiencies in memory and unavailability of witnesses.[221] This decision covered both the 2019 and 2022 proceedings.
[296] There is no proposed appeal from the decision not to extend time to make claims for compensation for events which took place more than three years before the institution of either the 2019 or 2022 proceedings. Therefore, there is no appeal from the Tribunal decision to dismiss those claims.
[297] The proposed appeal ground focuses not on the correctness of the decision denying an extension of time under the Limitation Act, but upon the unfairness said to arise from doing so in the context of the two procedural decisions of the Tribunal made in 2021, the effect of which was to refuse the tenants leave to amend the annexure to the List of Issues of August 2020 to include the repair and compensation claims which were ultimately the subject of the 2022 applications.[222] The tenants say that, had those additional claims been added to those made in the 2019 applications, all claims arising after 14 November 2016 would have been within time, due to the doctrine of relation back.[223]
[298] The Tribunal identified the difference between the list of issues and the cause of action on which the proceeding was based in its reasons of January 2023 where it referred to the tenants' application of 5 July 2021 "formally seeking to expand the list of issues" and commented that "In fact, rather than an expansion of the list of issues, the application was more about considering the issues agreed upon as they applied to newly identified items of repair".[224] That passage identified the important difference between the function of the list of issues, and the function of the applications in relation to each claim as particularised in the list of "repair items".
[299] The Tribunal operates informally and, usually, without pleadings. In that circumstance there are often, and appropriately, no real consequences attaching to a failure to comply with the sorts of procedural requirements which would be imposed by a court. However, there are some circumstances, where procedural matters can have legal consequences in the Tribunal. The operation of the Limitation Act is one such circumstance.
[300] As discussed above in ground 2A, the Tribunal pointed out in its reasons the significant difference between the landlord's reliance upon s 48(2) of the RTA in its argument and the tenants' 2021 application to add new "repair issues" (allegations of breach), and described the purpose of the list of issues as identifying "the issues to be considered in determining [the] proceedings".[225] The crucial difference is that the landlord's reliance on s 48(2) raised the conduct of the tenants, which was integral to the question of whether the landlord was in breach in relation to each claim where it was relevant, and an issue in the proceeding from the date of the landlord's original reply to the 2019 application. The tenants' amendments, by contrast, sought to add entirely new claims.
[301] For the purpose of the application of s 12 of the Limitation Act the date of the action is the date of the application to the Tribunal in respect of each alleged breach of the tenancy agreement, for which a remedy was sought. There is no express provision in the NTCAT Act, or the NTCAT Rules, providing for the amendment of a document so as to gain the benefit of the earlier filing date by "relation back".[226] That point was not raised on this appeal, or before the Tribunal. It may be that the Tribunal has an implied power to amend an initiating application to add a new cause of action. Such a power may well be consistent with the objectives of the Tribunal. Since the question was not in contention, I will assume that there is an implied power to amend for the purpose of these reasons.
[302] The point of law said to arise on the proposed appeal is legal unreasonableness, tied to a failure to comply with the objectives of the Tribunal in s 10 of the NTCAT Act. The difficulty with the tenants' position is that the questions of leave to amend and dismissal of claims which are statute barred are separate issues. Further, the tenants' predicament is largely of their own making.
[303] The relevant procedural history is referred to in the Tribunal's decision of 23 January 2023,[227] and the separate, interlocutory, decision given 21 July 2021.[228] The tenants' primary complaint relates to the alleged unfairness of the 21 July 2021 decision to refuse leave to amend the 2019 applications which, counsel for the tenants submitted, "jammed" the tenants into issuing the 2022 applications, resulting in the application of the Limitation Act.[229]
[304] The list of issues to be determined, based upon the 2019 applications, was agreed between the parties on 26 August 2020. On 22 May 2021 the tenants, in preparation for a hearing then scheduled for 31 May 2021, filed written opening submissions, annexed to which was what was then the current version of the "table of repairs". It is not controversial that this was the first time that the repair/compensation complaints which ultimately became the subject of the 2022 applications were raised in the Tribunal. The Tribunal ordered that, in view of the proximity of the hearing dates, the new repair items could not be considered as part of that hearing.[230]
[305] The May 2021 hearing was then rescheduled to 16 August 2021 due to COVID-19 travel restrictions. On 5 July 2021 the tenants filed an application in the Tribunal seeking a variation of the "list of issues" to be determined at the hearing to accommodate all repairs listed in the table of repairs attached to the submissions of 22 May 2021.
[306] On 26 July 2021 the Tribunal dismissed the tenants' application to amend the list of issues (or more correctly the annexure to that document) on the basis that the tenants intended to lead further evidence of the additional items from witnesses to be called during the hearing and that that would create unfairness to the landlord because it would not be in a position to respond to the new evidence. It is clear from the Tribunal reasons that procedural fairness and case management considerations were the key factors, in view of the proximity of the trial, for the decision to refuse leave to amend.[231] There is no reference in the Tribunal reasons of 21 July 2021 to any question of Limitation Act considerations or whether any new claims to be joined should be taken to have been filed at the time of the 2019 proceeding, or at some later time.
[307] The August 2021 dates were also vacated due to COVID-19 travel restrictions, as were alternative dates fixed for February 2022. Dates in May 2022 were vacated for other reasons beyond the control of the parties or the Tribunal.[232] The trial ultimately proceeded on 25 July 2022, for five days. There was no evidence that the tenants sought to revisit the question of amendment of the 2019 proceeding following those delays.
[308] The tenants did not seek to appeal the Tribunal decision refusing leave to amend the list of issues to add the additional claims for compensation at the time it was made in 2021. And they do not directly do so now.[233] Instead, the complaint is one of general unfairness or unreasonableness.
[309] In so far as the tenants complain that the Tribunal erred by "strictly applying" the provisions of the Limitation Act, it is difficult to understand how that can give rise to a ground of appeal. It is not disputed that, as the claim for compensation is founded upon alleged breaches of the lease, which is a contract, s 12(1)(a) of the Limitation Act applies to the claims for breach of the tenancy agreement seeking compensation pursuant to s 122 of the RTA, such that a claim must be brought within three years of the accrual of the right of action.[234] That being so, the Tribunal did not have a discretion to ignore the statutory bar once it was raised. On the contrary, it was obliged to apply the law as set out in the Limitation Act.
[310] In addition, given that the tenants concede that the Tribunal decision as to the effect and application of the Limitation Act provisions, including the decision to refuse leave to extend time, was correct, it is difficult to see how the Tribunal acted unreasonably in applying the statute according to its terms. There is also nothing in s 10 of the NTCAT Act, which sets out the objects of the Tribunal,[235] which is inconsistent with the application of the Limitation Act.
[311] While there was, perhaps, some hope on the part of the tenants that the applications for extension of time might be successful, it must have been apparent from at least 26 July 2021,[236] when the more formal application for amendment of the list of issues was refused, that there was a significant risk that any claim for compensation arising before 20 January 2019 would be statute barred. Indeed, the agreed list of issues, raised as a question in the proceeding (issue 14) the extent to which the Limitation Act limits the compensation payable pursuant to s 122.[237] Therefore, it is clear that all parties were aware that the Limitation Act provisions were an issue at an early time. Despite this, the further applications, raising the additional breaches alleged by the landlord (separate causes of action), were not filed until 20 January 2022. There is no explanation for the tenants' delay between July 2021 and January 2022. There is also no proper explanation as to why the tenants did not make claims in relation to the various problems in their own houses before 2021.
[312] In their written submissions to this Court, the tenants argued that the Tribunal "relied upon a roundabout, technical and rigid method in conflict with its statutory mandate" in order to force the tenants to bring further proceedings and then to have "relied upon those later filing dates to exclude claims". It was also said that the Tribunal "purported to formally excuse itself from having to deal with the evidence and submissions put to it in the proceeding, notwithstanding its obligations", thus denying the tenants procedural fairness, by failing to deal with all issues of significance raised. This, rather florid, characterisation of the Tribunal's approach in this case is both inappropriate, and wrong.[238] It is inappropriate because it seeks to characterise the Tribunal as a participant, and one acting against the tenants' interests at that, rather than as an independent decision maker. It is wrong because there is no basis for suggesting, as the tenants appear to do, that the Tribunal deliberately tried to limit their claims. Rather, as I have explained, the Tribunal applied the law as to the limitation of actions, and the 2021 application to amend in accordance with its function.
[313] The objects of the Tribunal include the requirement to act with minimal technicality and formality. The process in the Tribunal is not strictly adversarial, but in a case such as this it has many adversarial features. Notwithstanding any classification of where a Tribunal proceeding like this sits on the adversarial - inquisitorial continuum,[239] there is no doubt that it is the responsibility of an applicant to place before the Tribunal the claims which they wish to have determined. In doing so they commence an "action" for the purpose of s 12 of the Limitation Act. Clearly the tenants failed to include all of their possible claims (actions) in their original application. That was their failure, whatever the reason.
[314] The application to amend the list of issues in 2021 was made very shortly before each of the anticipated hearing dates in May 2021(informally) and in July 2021 (on application). There is no legal error apparent in the Tribunal's exercise of its discretion to refuse to expand the hearing by adding additional claims for compensation for additional breaches of the tenancy agreement at those times on the ground that it would not have been fair to the landlord to do so.
[315] The claims in the 2022 proceeding were related to those in the 2019 proceedings because they involved the same parties and the same leased premises and involved similar claims. They could have been included in one proceeding. However, they were also properly separate claims which were capable of founding separate applications. In addition, had the tenants made their application to have the newly discovered claims determined in a timely way they could have, at least, minimised the loss by commencing actions for those claims sometime in 2021, instead of January 2022.
[316] The juxtaposition of the refusal of leave to amend the 2019 proceeding, coupled with the decision that the various claims were time barred, does not lead to the conclusion that the Tribunal acted in breach of s 10 of the NTCAT Act, or unreasonably. Leave to appeal on this ground is refused, because the proposed ground of appeal has no prospect of success.

[140]

[324] In this ground of appeal the landlord complains that the Tribunal wrongly determined claims which were not before it for determination or, in the alternative, determined claims without hearing the landlord or considering all of the evidence. The nub of the appeal ground is that the Tribunal determined, in the case of each claim made on the basis of s 48 or 49 of the RTA which was unsuccessful, whether there was an alternative claim for breach of s 57(1).
[325] As discussed above, the two tables of repairs (one for each of the 2019 and 2022 proceedings) which were annexed to the tenants' written closing submissions before the Tribunal were the last in a series of iterations of those tables setting out the tenants' allegations as to the landlord's breaches of the tenancy agreement. In their written closing submissions, the tenants stated that that final version replaced all earlier versions. The tables contain a column identifying which section of the RTA the tenants relied upon in relation to each breach. The tenants referred to one section of the RTA which was relied upon in relation to each item. This was a different approach than that adopted in the table of repairs annexed to the tenants' opening submissions dated 21 May 2021. In that document each obligation implied into the tenancy agreement pursuant to a provision of the RTA was separately set out by reference to a section of the legislation.[245]
[326] The procedure adopted in this litigation has been, as I have indicated elsewhere in these reasons, and admittedly with the benefit of hindsight, somewhat apt to cause confusion. Considered in isolation, the change to the repair tables annexed to the tenants' closing submissions had the potential to be confusing. However, it is apparent from the submissions and other material before this Court that the approach agreed upon by the parties, and accepted by the Tribunal, was that the applications, repair tables, and the list of issues were to be read together as setting out the tenants' case.
[327] The list of issues, at issue 12,[246] asked, in respect of the items marked in the repair tables as a breach of s 48 or s 49, or any combination of those items, whether the landlord's conduct involved a breach of the habitability or security obligations. Issue 13 asked that, where there was no breach of s 48 or s 49 found by the Tribunal in relation to a matter raised in issue 12, the Tribunal consider in the alternative whether there was a breach of s 57(1). The tenants' closing submissions made it clear that issue 13 was not abandoned. A fair reading of the tenants' closing submissions does not, as suggested by the landlord in this appeal ground, indicate that the tenant had abandoned any claim for breach of s 57(1).
[328] The tenants made extensive written submissions as to issue 13.[247] Counsel for the tenants also addressed the Tribunal orally in relation to issue 13 on 3 August 2022.[248] In both cases, the tenants made clear their position was that the various repair items should be analysed first by reference to whether there was a breach of s 48 or s 49 and, if the Tribunal found that there was no breach of those sections, whether there was a breach of s 57(1). Similarly, counsel for the landlord addressed the Tribunal as to issue 13, specifically issue 13(a) in oral submissions[249] and in written submissions.[250]
[329] Although there was potential for confusion, having considered the submissions made, in my view both parties and the Tribunal approached the case on the basis that each item in the tenants' repair table identified as a breach of s 48 or s 49 would be analysed with reference to whether there was a breach of the identified primary obligation first, followed by consideration of a breach of s 57(1). Therefore I find that those matters were properly before the Tribunal for determination.
[330] The landlord further argues that, even if the issues were before the Tribunal for determination, there was a denial of procedural fairness and/or a specific error, because the Tribunal did not determine those matters with regard to the landlord's submissions. This aspect of this ground of appeal is only pressed with respect to Lot 63 2019 repair item (c) and (r), and Lot 67 2019 repair item (v).
[331] Lot 63 2019 repair item (c) concerns the missing cover on the inspection outlet of the septic tank. The landlord complains that it was only addressed by the landlord as a breach of s 48(1)(a) but that a breach of s 57(1) was found by the Tribunal. To the extent that the landlord may have chosen not to make any particular submission before the Tribunal when, as I have found above, the issue was before the Tribunal to determine, does not give rise to a ground of appeal. The landlord's submissions on this appeal at [172] to [181] relate only to matters of fact, which the landlord says that the Tribunal should have found on the evidence before it. No question of law is identified.
[332] Lot 63 2019 repair item (r) concerns the windows and security screen in the loungeroom. The landlord complains that there was no complaint or notification as to the installation of plastic rather than glass. That is a complaint as to the Tribunal's finding of fact. No question of law is identified.
[333] Lot 67 2019 repair item (v) concerns the hot water system being slow to heat. The landlord complains that there was evidence which indicated that it acted with reasonable diligence and points to evidence which was before the Tribunal. The landlord says that the Tribunal treated this as a single ongoing issue rather than a number of separate problems which were addressed by the landlord as they arose. I do not consider that is a fair reading of what the Tribunal did. The Tribunal reasons[251] show that the Tribunal considered some of the very documentation which the landlord refers to in its submissions.[252] The fact that not all documentation is referred to does not lead me to the view that the Tribunal failed to properly consider the evidence.
[334] The landlord also complains that the Tribunal took judicial notice of the fact that it would be untenable to shower in the winter months in Central Australia without hot water.[253] In my view the Tribunal was entitled to do so. The rules of evidence do not apply, but even if they had it is a matter of common knowledge that it is cold in Central Australia in winter. Further to that it appears that there was evidence from the tenant Mr Brown, as to the inconvenience caused. These are all matters of fact. No question of law is apparent.
[335] The landlord may assert that the Tribunal erred in its findings of fact, and as to the application of those facts to the test of due diligence, which is a matter of mixed fact and law, but that does not disclose an error on a question of law. Having regard to the reasons, the evidence, and the landlord's submissions, I am of the view that the Tribunal did not deny the landlord natural justice.
[336] Leave to appeal is refused.

[141]

[337] The second cross appeal ground complains that the Tribunal erred in law in awarding compensation to the tenants for breach of s 57(1) of the RTA when it found that the issue was caused by the tenants. This complaint concerns 2019 repair table Lot 63 item (r) and Lot 67 item (k).
[338] Lot 63 item (r) concerns the window in the loungeroom (discussed above at ground 14) in which the non-moveable pane was replaced with a plastic sheet. The landlord complains that the Tribunal ordered that the landlord compensate the tenants for failing to diligently repair the window by inserting a glass pane after receiving notification. The basis of the landlord's complaint is that the landlord was ordered to pay compensation notwithstanding that the tenants caused the damage. However, the Tribunal did not find that. The passage complained of is, in full "Whether or not it can be correctly said that the tenant was responsible for damage to the window, the landlord remained responsible for the repairs".[254] That passage comes at the end of a lengthy discussion about the history of damage to the window in which the Tribunal made no finding that the tenants were responsible. The Tribunal was unable to find who caused the damage.
[339] The landlord argues that if causation cannot be determined then there could be no breach of s 57(1). That is not correct. There is nothing in the wording of s 57(1), or any other section of the RTA which requires causation to be determined before the obligation to repair is triggered. That position is not inconsistent with the more specific requirements of s 51(1)(b) which requires the tenant to notify the landlord of damage caused, or potentially caused, by the tenant and s 55(3)(a) which requires the tenant to notify the landlord of damage caused by the tenant removing or installing a fixture.
[340] The purpose of notifying the landlord of damage, however caused, is so that the landlord may repair their property. Where damage is the responsibility of the tenant, the landlord has the option, in s 55(3)(b) of the RTA, of requiring the tenant to repair, or repairing the damage themselves and having the tenant compensate them for the cost. Damage can be caused in a variety of ways. Damage may be accidental or it may be that something in the house simply breaks or wears out. Criminal damage by a stranger will not usually be caused by the tenant (or a person for whom they are vicariously liable). However, in all cases there is an obligation upon the tenant to notify the landlord of the need for repair. Section 57(1) means that the landlord is in breach of the tenancy agreement if they fail to diligently repair damage of which they have notice, unless that requirement is inconsistent with one of the other provisions of Part 7.
[341] A landlord cannot generally rely upon the fact that the tenant has breached the tenancy agreement by damaging the property and elect not to repair the damage. However, what is reasonable will depend upon the circumstances. The landlord's obligation to repair under s 57(1) could be inconsistent with, for example, an election by a landlord to require a tenant to repair damage pursuant to s 55(3)(b). The effect of the words "subject to" in s 57(1) is not, as the landlord argues, to require the landlord to repair the premises only where there has been no breach by the tenant. However, a breach by the tenant will often be a relevant consideration in determining whether the landlord has acted with reasonable diligence and in assessing, even where there is a breach, whether compensation is payable. It depends upon the facts. A landlord has a range of options under the RTA to deal with breaches by a tenant, including requiring repairs to be made, recovering costs or, in a serious case, terminating the tenancy. A landlord must be proactive in enforcing their rights, but a tenant cannot expect in the normal course to be compensated for damage they have caused. In this case the landlord knew about the plastic pane in the window and took no steps to replace it. There was no evidence as to how the window was broken, and no error in the Tribunal decision.
[342] Lot 67 repair item (k) relates to the oven grill not working. The facts of this dispute are discussed above. Compensation was awarded for the period between 26 April and 22 June 2017. The Tribunal found that maintenance to the stove was requested on 26 April 2017 and 6 June 2017 and a replacement was installed on 22 June 2017. The Tribunal also found that as of 26 April 2017 the appliance was in a poor state of cleanliness and the door did not close. The Tribunal then went on to deal with the chronology as it related to another oven in 2019.
[343] The Tribunal found that "generally" the landlord had taken reasonable steps to make the oven and stove available in Lot 67 and that the problems with the stove were not a result of reasonable wear and tear. The Tribunal also found that there was no failure of the landlord to ensure habituality. It seems that the landlord took no steps to enforce its rights to reimbursement or, if available, to require the tenants to repair or replace the stove. There is no counterclaim for the cost of replacement. There was also no explanation for the delay in replacing the stove.
[344] The findings as to the cause of the problems, and whether the landlord acted with reasonable diligence are findings of fact. No question of law is identified in this ground of appeal and leave to appeal is refused.

[155]

[354] The 2017 tenancy agreement stipulates that the (landlord at item 2 of Schedule 1) is the CEOH. The definition of landlord at clause 28.1 is qualified in two respects. First, there is a general qualifier "unless the contrary intention appears" which applies to all definitions. Second, and more importantly, before the reference to Public Housing Safety officers, employees, agents and sub-contractors is the phrase "where context permits". That phrase makes it clear that the group described are not "agents" for all purposes. However they may be agents "in context" if they have the necessary authority in relation to the relevant power or obligation of the landlord.
[355] Whether a particular person has authority will depend on the facts and will vary with the context. For example, Public Housing Safety Officers have authority, given expressly in the tenancy agreement clause 10, to act in accordance with their powers under the Housing Act. They have control and management of that aspect of the tenancy on behalf of the landlord based on that authority. Further, clause 18 of the tenancy agreement provides that conduct engaged in by employees or agents of the landlord, within the scope of their actual or apparent authority, is taken to be engaged in by the landlord.
[356] There was evidence before the Tribunal that the CEOH had contracted Tangentyere Constructions to carry out general repairs and maintenance at Laramba and that most repairs were reported direct to Tangentyere through a 1800 number.[262] This is consistent with the oral evidence of Mr Brown who said in cross-examination that he would call Tangentyere to come out and, for example, plunge the kitchen sink,[263] fix the doors,[264]and repair a window.[265] Ms Pepperill (tenant of Lot 63) also agreed in cross-examination that she sometimes contacted the government or Tangentyere via a 1800 number to report problems with her house.[266]
[357] While the term "agent" is a term which can have a broad scope, there is no reason in my view, why an organisation, such as Tangentyere, which is specifically contracted and therefore authorised by that contract to deal with repairs and maintenance in a particular area on behalf of the landlord, including by receiving notifications on a dedicated 1800 number, should not be regarded as having authority to act on behalf of the landlord in that respect. Such a contractor is the landlord's agent while acting within the scope of its authorisation. In my opinion it is not correct that contractors can never be authorised to act on behalf of the landlord, or that such an authorisation must be in respect of the whole of the landlord's obligations under a tenancy agreement. In my view Jack (No 2) is not authority for such a proposition.
[358] Therefore, I am unable to agree with the Tribunal's conclusion that the 2017 tenancy agreement did not comply with s 19(1)(d) of the RTA in that respect.
[359] I would grant leave to appeal and allow the appeal on this ground, subject to the findings in relation to the notice of contention discussed below.

[160]

[366] Section 20 is directed to avoiding contracting out of the RTA. It does two things. First, subject to some exclusions, s 20(1) provides that an agreement that is inconsistent with the RTA, or the Regulations, or purports to exclude, modify or restrict the operation of the RTA is void to the extent of the inconsistency. Second, s 20(4) makes it an offence for a landlord to enter into an agreement which excludes, modifies or restricts the operation of the RTA, directly or indirectly, or purports to do so.[271] However, in my view the terms of s 20(1) are wider than those of the penalty provision and will apply even in cases where the inconsistency is not intentional.
[367] Section 19 has a different purpose, which is to ensure that the parties are aware of the terms of the tenancy agreement. The section sets out the various requirements that must be included in a written tenancy agreement, one of which is, at s 19(1)(d), that the agreement must contain each term, or a term to the same effect as each term, specified by the RTA to be a term of a tenancy agreement. There follow requirements that the landlord must sign the agreement and must give a copy to the tenant. There are penalties attached to the failure to comply with those provisions, but not to the obligation in s 19(1). Finally, s 19(4) provides that if the tenancy agreement does not comply with the requirements in s 19(1), or is not signed by all parties, a tenancy agreement is taken to be in the form prescribed.[272]
[368] The question is whether, when a tenancy agreement does not contain a term to the same effect as a term implied by operation of the RTA, the whole of an otherwise compliant written tenancy agreement is replaced by the prescribed tenancy agreement, or whether only the part that is inconsistent with the RTA is void. If the latter course is adopted, is the term severed or is it replaced with only the like term from the prescribed tenancy agreement? The point was considered by NTCAT in Various Applicants from Santa Teresa v CEO (Housing).[273] In that case the member found that an inconsistency between the written lease entered into between the landlord and the tenants engaged s 19(4) and, because s 19(1)(d) required the written tenancy agreement to "contain each term" said in the RTA to be a term of the tenancy agreement, that led to the result that the tenancy agreement was invalid and the terms were in accordance with the prescribed agreement.[274] That aspect of the decision was not challenged on appeal.[275]
[369] The landlord made only brief submissions as to the ascendency of s 20(1) compared with s 19(1). I am unable to accept them. In my view the purpose of s 19 is specific and directed to the purposes I have described above. It is not inconsistent with s 20(1) because a tenancy agreement which is invalid because it does not comply with s 19(1) is not "void to the extent of the inconsistency", it is invalid. The result may appear draconian, but it seems to me that is what was intended in what is consumer protection style legislation. In so far as it might be argued that the effect of s 19(4) is to give s 20(1) no work to do, that is not the case. A tenancy agreement may comply with s 19(1) but still be inconsistent with the RTA because it contains, for example, an additional requirement which is prohibited. [276] I also think that if only part of the tenancy agreement were replaced by the corresponding prescribed term there would be significant potential for confusion. Avoidance of such confusion appears to be a central purpose of s 19 of the RTA.
[370] Therefore, I uphold the order of the Tribunal that the tenancy agreement is in accordance with the terms of Schedule 2 of the Regulations on the alternate basis set out in the notice of contention.

Brown & Ors v CEO

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Before

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Judgment (380 paragraphs)

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Legislation Cited (10)

Cases Cited (10)