Bush v Menzies

The swamp water and the felled trees, weeds and debris

The evidence of Ms Bush

1. The evidence of Ms Bush relevantly included the following documents: 1. the following notation made by her on the 7 July 2023 condition report (Ex A1, p 29): "I was not told that trees were being removed at back which was one of the best features of the property - now exposed the drain + stagnant water - ruins my outlook Back of property where stagnant smelly water is lying is dangerous if I had children visit - large pipe + water All downed trees + rubbish need to be removed + area cleaned up" 1. the following notation made by her in the document emailed to C&P to be attached to the 7 July 2023 condition report (Ex A1, p 32): "Both Shenniah and Tyler were at the property when I viewed it at their Open House. … Nothing whatsoever was mentioned about what was to be done to the backyard. … Since then, after I picked up the key and went to the property, I have learned the following: 1. One of the most redeeming features of the property - the beautiful backyard - no longer exists. In its place, a considerable portion of the beautiful backward was demolished, exposing a cesspool and a pipe which leads to nowhere and water coming out of it and lying on the property. This goes for quite a distance as I saw a duck swimming across the water further back. The ground around this was very wet and soft and smelly. The beautiful backyard and side, covering a lot of the fence along the railway, was one of the features of the property which I found very appealing. Now, I believe, it is a health hazard with the water lying there with nowhere to go, it will attract mosquitoes (which cause Ross River fever among other things) and it will continue to smell. This is also dangerous if my visitors had children who could get to this water. A dangerous, smelly, backyard which is now a health hazard, NOT WHATI SIGNED UP FOR!" 1. two coloured photographs of surface water in the area of the felled cockspur coral trees and other vegetation and an exposed storm water drain taken by her on 6 July 2023 (Ex A1, pp 71-72); 2. an aerial photograph of the premises and adjoining properties on which are marked the boundaries of four lots and in handwriting their Deposited Plan (DP) numbers: DP2/7338; DP3/7338; DP4/7338; DP5/7338 (the Bush aerial photograph) (Ex A1, p 95).

The evidence of Mr Menzies

1. The evidence of Mr Menzies relevantly included the following documents: 1. the 18 January 2024 Cleary statement (Ex R1, p 4): "Ai. On Monday 23 May 2022 council sent a letter to the landlord identifying Coral trees on Lot 1 & Lot 3 known as 44-46 Fitzroy Street Urunga, which is the adjoining land to the leased lots 5 & 4 known as 48A Pilot Street Urunga. Attachment # 1 - letter from council Attachment # 2 - maps of property Between the 21st & 27th June 2023 the landlord Mark Menzies cleared the coral tress on the adjoining block, as per council instructions. Mark opted to complete these works on the adjoining block whilst the property was vacant to minimize the disruption to the tenant/s. … iii. The tenant viewed the property on 8th June 2023, …" 1. the letter of the Council dated 23 May 2022 to him and Ms Menzies in their capacity as "Landowner/manager" of "Lot 1 DP575255 Part Lot 3 DP7338" with their postal addresses which are a different street to the postal address of the premises recorded in the tenancy agreement (the 23 May 2022 Council letter) (Ex R1, pp 7-9); 2. two aerial photographs of the premises and adjoining properties on which are marked the boundaries and the dimensions of four lots and their DP numbers: "1/575255"; "3/7338"; "4/7338"; "5/7338". DP1/575255 is contiguous on one boundary to DP3/7338, which is contiguous on one boundary to DP4/7338, which is contiguous on one boundary to DP5/7338. The house is located within DP5/7338 and part of DP4/7338. The yard is located within DP5/7338 and part of each of DP4/7338 and DP3/7338. There are trees adjacent to the yard within each of DP4/7338 and DP3/7338, and DP5/7338 is wholly filled with trees (the Menzies aerial photographs) (Ex R1, pp 10-11); 3. a Google map of the premises and adjoining properties on which is marked their postal address and boundaries (the Google map) (Ex R1, p 12).

Conclusion

1. There may be a dispute between the parties as whether the land on which the felled cockspur coral trees and other vegetation are located is part of the premises. Mr Menzies contended that this land adjoins the premises and accordingly he has no liability for repairs. It is unclear whether Ms Bush contended that this land is part of the premises or adjoins the premises.
2. I infer from the fact that the 23 May 2022 Council letter is addressed to Mr Menzies and Ms Menzies in their capacity as "Landowner/manager" that they are the owners of the land in DP1/575255 and DP3/7338, and from the location of the house and yard within DP4/7338 and DP5/7338 when read with the tenancy agreement that Mr Menzies is the owner of the land in DP4/7338 and DP5/7338.
3. The evidence adduced by the parties as to the boundaries of the premises is unsatisfactory. There was no survey of the premises and/or information from the Council identifying the title references corresponding to its postal address. I do not accept the evidence of Ms Cleary that the premises are the land in DP4/7338 and DP3/7338. The position of Ms Bush as to the location of the boundaries of the premises by reference to the applicable DP numbers is unclear, and is compounded by the discrepancy as to the DP numbers for the land in DP2/7338 and DP1/575255 between the Bush aerial photograph and the Menzies aerial photographs.
4. I have been unable to ascertain the boundaries of the premises from the 23 May 2022 Council letter, the Bush aerial photograph, the Menzies aerial photographs and the Google map. In the absence of satisfactory evidence of the parties, I find that the boundaries of the premises are the boundaries of the mowed yard, and that the felled cockspur coral trees and other vegetation are not located within the premises.
5. I accept the evidence of Ms Cleary that Ms Bush inspected the premises on 8 June 2023 and the cockspur coral trees and other vegetation were cut down and left on the ground between 21 and 27 June 2023.
6. It follows that I am not satisfied that Mr Menzies had any obligation to Ms Bush under s 63(1) of the RT Act in relation to the state of the land adjoining the premises. If, contrary to my finding, the felled cockspur coral trees and other vegetation are located within the premises, then I would not have been satisfied that Ms Bush had established that their felling occurred after the commencement of the tenancy agreement on 28 June 2023. Further, even if Ms Bush had established that the cockspur coral trees and other vegetation are located within the premises and their felling occurred after the commencement of the tenancy agreement on 28 June 2023, I would not have been satisfied that I had power to order Mr Menzies carry out specific repairs within 65(1)(a) of the RT Act as the work carried out by him was of such a nature that the cockspur coral trees and other vegetation could not be repaired.

The filters of the rangehood, the knobs of the stove and the oven door seal

Introduction

1. There is an agreement between the parties that one of the knobs of the stove has a sleeve which is loose.

The evidence of Ms Bush

1. The evidence of Ms Bush relevantly included the following documents: 1. the following notation made by her on the 7 July 2023 condition report (Ex A1, p 27): "oven not clean - needs to be cleaned in +out inside oven not properly cleaned filters not clean - need to be cleaned knobs need to be cleaned cloth around oven is filthy needs to be replaced" 1. the following notation made by her on the 7 July 2023 condition report (Ex A1, p 29): "oven not in good repair" 1. a coloured photograph of the filters of the rangehood with the following caption (Ex A1, p74): "This shows the disgusting filters, which look like they have never been cleaned. I believe these need to be replaced, as I doubt if they could be properly cleaned The landlord's wife witnessed these when she dropped by on 7/7/23. She agreed that the house, especially the complete stove/oven needed a "deep clean"." 1. the same coloured photograph of the filters of the rangehood with the following caption which she emailed to Mr Menzies on 28 August 2023 at 11.27am as an attachment marked "2O23O828095607.jpg" (the first 28 August 2023 at 11.27am Bush email) (Ex A2, p26): "Photograph of the filters for the stove. This was emailed to the landlord on 28/8/23. It appears obvious that other filters were substituted in the photographs which appear in the report provided by Kern Kleen cleaners, in an attempt to hide the real condition of the filters. A cleaner has just advised that the filters, knobs and seal need to be replaced, or the stove replaced." 1. a coloured photograph of two knobs of the stove with the following caption (Ex A1, p75): "This shows the filthy knobs which were very sticky and almost all of them came completely off. Some have been attached but the sleeve of this knob comes completely off - making it very difficult to use that burner, as I have a bad back and it means that whenever I want to adjust the gas I have to lean down to see it. I should be able to rely on the sleeve, which indicates and level of gas, to be intact. I do not have a 5 burner stove as advertised. I have a 3 burner stove, which is still too filthy to use." 1. the same coloured photograph of two knobs of the stove with the following caption which she emailed to Mr Menzies on 28 August 2023 at 11.27am as an attachment marked "20230828095655.jpg" (the second 28 August 2023 at 11.27am Bush email) (Ex A2, p27): "Photograph of the knobs on the stove, showing the sleeve to one of the knobs, which is cracked and comes off completely. This was emailed to the landlord on 28/8/23. There was no response. A cleaner has just provided me with a report the knobs, filters and seal need to be replaced, or the stove replaced." 1. the letter of Aleisha Williams (Ms Williams), Business Manager, of Leisha's X'tra Home Detailing dated 28 January 2024 to Ms Bush (the 28 January 2024 Williams letter) (Ex A2, p20) which relevantly provides: "I am sending this letter to inform you of the Cleaning I was unable to complete. … As for the stove, oven and rangehood. I am unable to clean the buildup of grease off the stove knobs and broken knob sleeves, they will need to be replaced as well as the disintegrating rangehood filters. The oven appears to be faulty, on inspection I have found that it does not heat adequately and efficiently. I do highly suggest this be replaced as soon as possible. In addition to this, the oven door seal has become thinned and frayed due to age, allowing heat to escape, forcing the oven to overcompensate for heat loss causing overheating and subsequently adding to the electricity bill. The cost of the knobs to replace is $50.79 each. The oven door seal is an additional $144.80. This does not include postage. I have yet to find suitable filters for the rangehood. You may need to measure or take them in to your nearest electrical appliance store to replace with the correct size."

The evidence of Mr Menzies

1. The evidence of Mr Menzies relevantly included the following documents: 1. the following notation made by C&P on the 7 July 2023 condition report (Ex R2, p 5): "Emilia oven & stove - black staingin to base of oven - water run marks to internal oven door glass - no cracks or chips to glass excellent condition - clean externally y & internally - external stainless smeary" 1. the 18 January 2024 Cleary statement (Ex R1, p 4): "Aii. As per the tenant's request, on the 17th & 18th & 20th July 2023 Kerrie Egan from Kern Kleen completed a professional clean on the property, paying close attention to the items noted by the tenant on the ingoing condition report, Attachment # 3 - cleaning report Attachment # 4 - invoice Attachment # 5 - workorder … v. The stove knobs do not fall off, there are 5 burners, 1 skirt around 1 knob is loose, it does not affect the use of the oven/stove/cooktop. It is aesthetic only. B. The stove is working. During the 6 weekly inspection which took place 17th August 2023 the tenant advised the stove was not working, however she had it switched off at the isolation wall switch. Once I turned the isolation switch on, I showed the tenant the stove and cooktop work fine. The tenant then went on to say, "the stove is too dirty to use" and "she will not cook on it". We had the stove (and property) professionally cleaned by Kerrie Kleen 17th, 18th & 20th July 2023 as previously requested by tenant. Attachment # 9 - photos of stove/oven/cooktop/rangehood" 1. the letter of Kerry Egan (Ms Egan) who carries on business under the name Kerry Kleen dated 23 July 2023 to Ms Cleary (the 23 July 2023 Egan letter) (Ex R1, p 13): "The oven was clean. The cleaning wasn't fully executed properly there some marks remaining that hadn't been scrubbed off but there was no greasy fat residue inside. The rangehood filters had bugs in it, on the internal side. That have come down the flue." 1. four coloured photographs of the filters of the rangehood, the stove and the oven taken by Kerry Kleen during the cleaning on 17, 18 and 20 July 2023 (the Kerry Kleen photographs) (Ex R1, pp 27-29).

Conclusion

1. I infer from the photograph references "20230828095607.jpg" and "20230828095655.jpg" that the coloured photographs of the filters and oven relied on by Ms Bush were taken on 28 August 2023. Both these photographs and the photograph taken by Kerry Kleen during the cleaning on 17, 18 and 20 July 2023 depict discolouring of the filters.
2. Ms Williams does not record in the 28 January 2024 Williams letter when she cleaned the premises. I infer from the caption for the coloured photograph of the filters of the rangehood in the first 28 August 2023 at 11.27am Bush email and the caption for the coloured photograph of two knobs of the stove in the second 28 August 2023 at 11.27am Bush email when read with the contents of the 28 January 2024 Williams letter that Ms Williams cleaned the premises on or shortly before 28 August 2023.
3. While I am satisfied from the coloured photograph attached the first 28 August 2023 at 11.27am Bush email and the Kerry Kleen photographs that the filters of the rangehood are discoloured, I am not satisfied that Ms Bush has established that Mr Menzies has breached his obligation under s 63(1) of the RT Act by reason that they are not functioning or disintegrating. I do not accept her contention that information provided by Ms Egan in the 23 July 2023 Egan letter is inaccurate. It follows that Ms Bush is not entitled to an order under s 65(1)(a) of the RT Act that Mr Menzies carry out repairs to the filters of the rangehood.
4. As one of the knobs of the stove has a sleeve which is loose, I am satisfied Mr Menzies has breached his obligation under s 63(1) of the RT Act and that this knob needs to be repaired. Otherwise, I am not satisfied that Ms Bush has established that Mr Menzies has breached his obligation under s 63(1) of the RT Act by reason that the other knobs of the stove are defective. It follows that Ms Bush is entitled to an order under s 65(1)(a) of the RT Act that Mr Menzies carry out repairs to the one knob of the stove which has a sleeve which is loose.
5. I accept the evidence of Ms Williams in the 28 January 2024 Williams letter that the oven door seal (which Ms Bush describes as "the coil around the oven door") has become thinned and frayed due to age, allowing heat to escape. Mr Menzies adduced no contradictory evidence. I find that the oven door seal is not working properly and am satisfied Mr Menzies has breached his obligation under s 63(1) of the RT Act. It follows that Ms Bush is entitled to an order under s 65(1)(a) of the RT Act that Mr Menzies carry out repairs to the oven door seal.

The floors

1. It is unnecessary to set out the evidence of the parties as there is no dispute between them that there is no insulation under the floorboards.
2. Ms Cleary conceded that Mr Menzies is liable to repair the floorboards in the loungeroom approximately 1.5 metres from the main bedroom where the previous "repair" has come away. In the light of this concession, I am satisfied that Ms Bush is entitled to an order under s 65(1)(a) of the RT Act that Mr Menzies carry out repairs to the floorboards in the loungeroom approximately 1.5 metres from the main bedroom where the previous "repair" has come away.
3. Ms Bush adduced no evidence that dwellings of the same age which are elevated above the surface of the ground in the same local government area normally have insulated floorboards. In the absence of any such evidence, I am not satisfied that Ms Bush has established that Mr Menzies has breached his obligation under s 63(1) of the RT Act by reason that the floorboards are not insulated.
4. It follows that I am not satisfied that Ms Bush has established that she is entitled to an order under s 65(1)(a) of the RT Act that Mr Menzies carry out repairs by the installation of insulation under the floorboards. Ms Bush is not seeking an order for the carrying out of specified repairs within s 65(1)(a) of the RT Act, but rather an order for the improvement of the premises and has not demonstrated that the Tribunal has power under the RT Act to make any such order.

Screens to the windows and doors

1. It is unnecessary to set out the evidence of the parties as there is no dispute between them parties that there are some windows without screens and some doors without screens.
2. Ms Bush adduced no evidence that dwellings of the same age in the same local government area normally have screens on all the windows and doors. In the absence of any such evidence, I am not satisfied that Ms Bush has established that Mr Menzies has breached his obligation under s 63(1) of the RT Act by reason that there are some windows without screens and some doors without screens.
3. It follows that I am not satisfied that Ms Bush has established that she is entitled to an order under s 65(1)(a) of the RT Act that Mr Menzies carry out repairs by the installation of screens to the windows without screens and the doors without screens. Ms Bush is not seeking an order for the carrying out of specified repairs within s 65(1)(a) of the RT Act, but rather an order for the improvement of the premises and has not demonstrated that the Tribunal has power under the RT Act to make any such order.

The evidence of Ms Bush

1. The evidence of Ms Bush relevantly included the following documents: 1. the following notation made by her on the 7 July 2023 condition report (Ex A1, p 23): "sliding door on R (closet) doesn't run smoothly" 1. the details she provided in the 22 December 2023 Bush documents (the 22 December 2023 sliding closet doors details) (Ex A1, p 53): "6) THE SLIDING CLOSET DOORS IN THE 2ND BEDROOM ( FIRST ON THE LEFT) NEED TO BE FIXED • The agent did an inspection on the 17/8/23. She was shown how the closet doors did not work properly, there was a loud clunking sound when they were opened or closed and 1 (sic) was stiff and hard to close. • It was agreed at one point that they would be fixed. • The first handyman came, I showed him and he said he would fix them after he did another job. He left without fixing them. He then said that they worked fine. I believe he couldn't fix them so that was the easy way out. • The agent then said also that they worked fine! • The second handyman came, much more competent, and he fixed them! This proved that the agent and the first handyman were lying! • The first handyman also damaged part of the blind and also the window sills but did not acknowledge it, leaving it for me to take the blame. • The second handyman said the track was out of alignment and even though he fixed them then, unfortunately, they need to be fixed again. • I therefore ask for an Order that the sliding doors in the 2nd bedroom be fixed. I also ask for an Order that the first handyman not be sent to my property again. I do not trust him and I do not feel safe with him." 1. her commentary on the C&P maintenance summary in the 31 January 2024 Bush rebuttal (Ex A2, pp 11-12); 2. the email of Ms Bush sent to Ms Cleary on 16 October 2023 (the 16 October 2023 Bush email) (Ex A2, pp 41-42) which relevantly provides: "I do NOT want the useless handyman who came to put locks on the windows and supposedly fix the toilet which he never did. I told him the sliding doors in the BR needed to be done and he said he would do them. However, he forgot. Then, the landlord decided that he wouldn't do this job which was mentioned as far back as the Condition Report!"

The evidence of Mr Menzies

1. The evidence of Mr Menzies relevantly included the following documents: 1. the 18 January 2024 Cleary statement (Ex R1, p 5): "Dii. All repairs the tenant has requested have been completed, refer maintenance list. The tenant is now not asking for repairs but improvements." 1. item 1537 in the C&P maintenance summary which records the built in door with the status "completed" on 21 September 2023 (Ex R1, p 47); 2. the email of Ms Cleary sent to Ms Bush on 27 October 2023 (the 27 October 2023 Cleary email) (Ex R1, p 32) which relevantly provides: "… As previously advised. - Sliding doors in bedroom - These doors work fine, open & close on inspection, no maintenance work will be carried out. …"

Conclusion

1. I accept the evidence of Ms Bush that the sliding closet doors in the second bedroom do not run smoothly. I also accept the evidence of Ms Bush in the 16 October 2023 Bush email that these sliding doors were not repaired on or shortly before 21 September 2023. I further accept the evidence of Ms Bush in the 22 December 2023 sliding closet doors details that the repairs undertaken by the second handyman did not effectively repair these sliding doors. In circumstances where Mr Menzies adduced no evidence by the handyman, I do not accept the evidence of Ms Cleary in the 18 January 2024 Cleary statement that this repair has been carried out.
2. I am satisfied Mr Menzies has breached his obligation under s 63(1) of the RT Act by reason that the sliding closet doors in the second bedroom do not operate properly. It follows that I am satisfied that Ms Bush has established that she is entitled to an order under s 65(1)(a) of the RT Act that Mr Menzies carry out repairs to these sliding doors.

Whether the rent payable under the tenancy agreement should be ordered to be paid into the Tribunal until Mr Menzies complies with the order

1. While I am satisfied that Ms Bush has established that she is entitled to an order that Mr Menzies carry out specified repairs within s 65(1)(a) of the RT Act in relation to the floorboards in the loungeroom approximately 1.5 metres from the main bedroom where the previous "repair" has come away, the knob of the stove with a detached sleeve, the oven door seal and the sliding closet door in the second bedroom, I am not satisfied that Mr Menzies will not comply with an order that these repairs are carried out within a reasonable period which I consider to be 20 business days. It follows that I am not satisfied that Ms Bush has established that she is entitled to an order under s 65(5) of the RT Act that the rent payable under the tenancy agreement should be paid into the Tribunal until Mr Menzies carries out these repairs. Except to the extent of the order for the carrying out of these repairs, the proceedings so far as Ms Bush seeks orders in relation to the carrying out of repairs and the payment of rent pending the carrying out of these repairs should be dismissed.

Issue 3: whether Ms Bush may install safety rails in the premises

Introduction

1. In her oral submissions Ms Bush stated that she wants permission to install safety rails for each of the toilet and shower in the ensuite, the toilet in the laundry, and the bath in the main bathroom.
2. The dispute between the parties is that Ms Bush asserts that she has the right to install permanent safety rails, while Mr Menzies has refused to agree to the installation of any safety rails.
3. The RT Act relevantly contains the following provisions with respect to alterations to residential premises: 1. section 66: 66 Tenant must not make alterations to premises without consent (1) A tenant must not, without the landlord's written consent or unless the residential tenancy agreement otherwise permits, install or cause to be installed a fixture or make or cause to be made any renovation, alteration or addition to the residential premises. (2) A landlord must not unreasonably withhold consent to a fixture, or to an alteration, addition or renovation that is of a minor nature. (2A) The regulations may make provision for or with respect to the following - (a) the kinds of fixtures, or alterations, additions or renovations that are of a minor nature in relation to which it would be unreasonable for a landlord to withhold consent, (b) the circumstances in which the giving of consent by the landlord to the fixture, alteration, addition or renovation may be conditional on the fixture only being installed, or the alteration, addition or renovation only being carried out, by a person appropriately qualified to install a fixture, or carry out alterations, additions or renovations, of that kind. (3) A landlord may withhold consent to any other action by the tenant that is permitted under this section whether or not it is reasonable to do so. (4) A fixture installed by or on behalf of the tenant, or any renovation, alteration or addition to the residential premises by or on behalf of the tenant, is to be at the cost of the tenant, unless the landlord otherwise agrees. (5) This section is a term of every residential tenancy agreement. 1. section 68: 68 Tenants' remedies for alterations (1) The Tribunal may, on application by a tenant, make any of the following orders, if the landlord fails to consent - (a) an order that the tenant may install a fixture or make a renovation, alteration or addition to the residential premises, (b) an order that the tenant is entitled to remove a fixture installed by the tenant. (2) The Tribunal may order that the tenant may install a fixture or make a renovation, alteration or addition to the residential premises only if it is satisfied - (a) that the landlord's failure to give consent is unreasonable, and (b) if the consent is to a renovation, alteration or addition, that it is of a minor nature. (3) The Tribunal may determine that a landlord's failure to consent is reasonable in any of the following circumstances (but is not limited to those circumstances for such a determination) - (a) if the work involves structural changes, (b) if the work involves work that would not be reasonably capable of rectification, repair or removal, (c) if the work involves internal or external painting of the residential premises, (d) if the work is prohibited under any other law, (e) if the work is not consistent with the nature of the property.
4. Clause 22 of the RT Regulation relevantly makes provision with respect to the matters specified in s 66(2A) of the RT Act: 22 Fixtures or alterations, additions or renovations to residential premises - s 66(2A) of Act (1) For the purposes of section 66(2A)(a) of the Act, the following are kinds of fixtures or alterations, additions or renovations of a minor nature in relation to which it would be unreasonable for a landlord to withhold consent - … (h) installing hand-held shower heads or lever-style taps for the purpose of assisting elderly or disabled people, … (2) For the purposes of section 66(2A)(b) of the Act, a fixture, or alteration, addition or renovation specified in subclause (1)(h) or (j) may be conditional on the fixture only being installed, or the alteration, addition or renovation only being carried out, by a person appropriately qualified to install a fixture, or carry out alterations, additions or renovations, of that kind. …

The evidence of Ms Bush

1. The evidence of Ms Bush relevantly included the following documents: 1. the email of Ms Cleary sent to her on 31 October 2023 (the 31 October 2023 Cleary email) (Ex A2, p 28) which relevantly provides: "… I have met with the landlord and can confirm the following. … - As per my previous emails, the landlord has advised he does not want a permanent grab rail installed in the shower as this could compromise the waterproofing. The landlord has also advised that he and his wife will be moving into the property down the track, and do not want a grab rail in their shower. Again, our recommendation is to contact home care for alternatives. …" 1. the 31 January 2024 Bush rebuttal (Ex A2, p 19) which relevantly provides: "I mentioned that I would like a rail installed in the shower in the ensuite, to prevent falls. It would be installed and paid for by my Home Care Package and would obviously stay with the property when I vacate. This was in AUGUST '23, and still has not been able to be installed. I have advised her since then that I have had almost 3 falls."

The evidence of Mr Menzies

1. The evidence of Mr Menzies relevantly included the following documents: 1. the 18 January 2024 Cleary statement (Ex R1, p 5): "C. It has been recommended to the tenant and the tenant's home care provider that she install suction grab rails or utilize a shower chair, that can be removed at the end of her tenancy and not compromise the waterproofing. The property was viewed without grab rails." 1. the email of Ms Cleary sent to Ms Bush on 13 October 2023 (the 13 October 2023 Cleary email) (Ex R1, p 31) which relevantly provides: "… With regards to the grab rail in the shower, the landlord is concerned about the installation of this compromising the waterproofing. Have you considered a suction grab rail? As this won't damage the tiles or membrane and can be removed at the end of your lease." 1. the email of Amelia Bolt (Ms Bolt), Nursing and Home Care Package Program Manager of Carexcell Community Care Pty Ltd, sent to Ms Cleary and Ms Bush on 28 November 2023 (Ex R1, p 38) to which was attached the letter of Ms Bolt dated 28 November 2023 (the 28 November 2023 Bolt letter) (Ex R1, p 39) which relevantly provides: "Mrs Beverley Bush who resides at the above address is currently in receipt of a level 3 Home Care Package. Carexcell Community Care is the provider of this package and aims to support Mrs Bush to remain safe and Independent in her home. It has come to the attention of Carexcell that the home currently has no grab rails in the bathroom or toilet. Beverley suffers from aged related mobility and balance issues and I would like to request the installation of grab rails in the toilet and bathroom to ensure Beverley is able to safely conduct her activities of daily living and minimise her risk of falls. I understand the option of a suction rail has been offered in previous conversations between Beverley and the agent/owner of the property. However, I strongly discourage this option as suction rails are not reliable and have the potential to increase her risk of falling and sustaining serious injuries. The cost of supply and installation of grab rails would be paid for from Beverley's Home Care Package, installed by a licensed builder and would remain in the property when she vacates. Carexcell requests permission to proceed with supply and installation of grab rails in the bathroom and toilet of [address omitted], Urunga NSW, 2450 to ensure Beverleys safety and independence are supported.

Conclusion

1. I am not satisfied that Mr Menzies has established that the installation of safety rails (which Ms Cleary has described as "grab rails") in the shower would compromise the waterproofing in the shower. Without specific evidence I do not accept that a shower would contain waterproofing at the height at which safety rails would be installed.
2. I accept the evidence of Ms Bolt in the 28 November 2023 Bolt letter that the installation of safety rails in the bathroom and toilet of the premises is necessary for the safety and independence of Ms Bush. In the light of this evidence, I am satisfied that I should exercise the discretion under s 68(1)(a) of the RT Act to make an order to permit Ms Bush to instal safety rails for each of the toilet and shower in the ensuite, the toilet in the laundry, and the bath in the main bathroom.
3. I satisfied that the failure of Mr Menzies to consent to the installation of safety rails for each of the toilet and shower in the ensuite, the toilet in the laundry, and the bath in the main bathroom has been unreasonable within s 68(2)(a) of the RT Act because there is no evidence that any of the circumstances specified in s 68(3) of the RT Act or any other relevant circumstances apply.
4. Safety rails for the purpose of assisting elderly or disabled people are not specified in cl 22(1) of the RT Regulation as being a fixture or alteration of a minor nature in relation to which it would be unreasonable for a landlord to withhold consent. Nonetheless, I am satisfied that the installation of safety rails for each of the toilet and shower in the ensuite, the toilet in the laundry, and the bath in the main bathroom is an alteration which is of a minor nature within s 68(2)(b) of the RT Act where waterproofing will not be compromised.
5. I note the evidence of Ms Bolt in the 28 November 2023 Bolt letter that the safety rails will be installed by a licensed builder. Safety rails are sufficiently analogous to hand-held shower heads or lever-style taps within cl 22(1)(h) of the RT Regulation that I have decided to make the order under s 68(1)(a) of the RT Act conditional on the safety rails being installed by a licensed builder.
6. While I note the evidence of Ms Bolt in the 28 November 2023 Bolt letter that the safety rails would remain in the premises when Ms Bush vacates, as I am not satisfied that the Tribunal has power under the RT Act to make any such order, the proceedings so far as Ms Bush seeks an order for the permanent installation of safety rails should be dismissed. The question of whether any installed safety rails can remain will need to be determined at that time of the termination of the tenancy agreement having regard to its terms and the provisions of the RT Act.

Issue 4: whether Mr Menzies should be ordered to be responsible for the regular weeding of the garden beds

Introduction

1. The dispute between the parties is that Ms Bush asserts that Mr Menzies should be responsible for the regular weeding of the garden, while Mr Menzies assets that under the terms of the tenancy agreement Ms Bush has this responsibility.

The evidence of Ms Bush

1. The evidence of Ms Bush relevantly included the following documents: 1. the following notation made by her on the 7 July 2023 condition report (Ex A1, p 28): "Chip bark needs to be applied instead of dried grass (will have seeds in it)" 1. a coloured photograph of part of a garden bed adjacent to a paling fence with the following caption (Ex A1, p91): "Dried grass on beds. Weeds" 1. the email of Ms Bush sent to Ms Cleary on 18 January 2024 (Ex A2, p 63) which relevantly provides: "As I have mentioned on numerous occasions, bark mulch was NOT applied to the garden beds, as noted in the Condition Report. You said that the tenants said they applied some bark mulch. I checked the beds where you pointed, and there was NO bark mulch there. The landlord applied dried grass, not even proper hay, to the beds. The landlord's wife, as I have mentioned previously, when I pointed this out to her and how bad it looked, she replied "I don't know where he got that from!" She acknowledged that it didn't look good. I have also pointed out on numerous occasions that due to dried grass being applied instead of the bark mulch which should have been applied, the dried grass had weed seeds in it and therefore, would result in weeds. This is exactly what has happened. I have also pointed out on numerous occasions that due to the dried grass being applied instead of the bark mulch, I certainty do not feel obligated to take care of the garden beds due to the resultant weeds from the weed seeds in the dried grass. We have been over and over this point. You will be able to view the weeds when you do your inspection. Had bark mulch been applied, as it should have been, then the garden beds would not be in the condition they are now in."

The evidence of Mr Menzies

1. The evidence of Mr Menzies relevantly included the following documents: 1. the tenancy agreement (Ex R2, pp 3-4) relevantly includes the following terms: "… ADDITIONAL TERM - TENANT'S CARE AND USE OF THE RESIDENTIAL PREMISES 59. Further to clauses 16 and 17 and subject to any applicable by-law, the tenant agrees: … 59.6 to regularly mow the lawns and keep the grounds and garden tidy and free of weeds and rubbish and maintain them in their condition, fair wear and tear excepted, as at the commencement of this agreement; … SPECIAL CONDITIONS The tenant agrees to accept that; … "3. LAWNS & GARDENS: The tenant agrees to maintain the lawns and gardens in good order, as per the ingoing condition report, remove all rubbish and keep the property in a neat and tidy manner at all times. …" 1. the following notation made by C&P on the 7 July 2023 condition report (Ex R2, p 5): "Grounds/Gardens Weeds to some areas of gardens - chip bark to garden beds" 1. two coloured photographs showing the garden beds adjacent to the boundary in different locations taken on 27 June 2023 (Ex R2, pp 24-27); 2. the email of Ms Bush sent to Ms Cleary on 2 January 2024 (Ex R2, pp 109-110) which relevantly provides: "Also, the garden beds need to be weeded. As previously advised on several occasions, I do not accept responsibility for keeping the garden beds weeded due to the fact that bark mulch was NOT applied, as noted in the Condition Report. You tried to make out that the tenants had applied some bark mulch. I checked the area you pointed to. There was NO bark mulch at all. You obviously did not check this yourself. As advised, as dried grass was applied to all the garden beds instead, which carried weed seeds, I consider it the landlord's responsibility to attend to the weeding of the garden beds. This needs to be done at the earliest convenience, as the garden beds are now unsightly." 1. the email of Ms Cleary sent to Ms Bush on 2 January 2024 (Ex R2, p 109) which relevantly provides: "Please find attached the following: 1. Insert of your Residential Tenancy Agreement conditions page 11, section 59.6. 2. Ingoing photos of the gardens taken 27.06.23. Please maintain the lawns and gardens as per the ingoing condition at the commencement of the lease agreement."

Conclusion

1. Pursuant to cl 59.6 of the tenancy agreement Ms Bush has the obligation to keep the garden free of weeds. Pursuant to special condition 3 of the tenancy agreement Ms Bush has the obligation to maintain the gardens in good order.
2. Ms Bush did not make any submissions as to the power of the Tribunal under the RT Act to vary the terms of cl 59.6 and special condition 3 of the tenancy agreement to provide that Mr Menzies should be responsible for the regular weeding of the garden. I am not satisfied that the Tribunal has any such power. This claim of Ms Bush is misconceived, and the proceedings so far as Ms Bush seeks an order that Mr Menzies should be responsible for the regular weeding of the garden should be dismissed.

Issue 5: whether the rent payable under the tenancy agreement is excessive and if so the amount of the excessive rent

Introduction

1. Ms Bush is seeking an order that the rent payable under the tenancy agreement should be the following amounts for the following periods and reasons: 1. $nil from 28 June 2023 to 28 July 2023 as vacant possession was not given; 2. $275.00 per week from 28 July 2023 until the clearing up and rectification of the swamp and debris; 3. $410.00 per week from the time the clearing up and rectification of the swamp and is fully completed for the remainder of the tenancy agreement.
2. Section 44 of the RT Act relevantly provides remedies for tenants for excessive rent: 44 Tenant's remedies for excessive rent (1) Excessive rent orders The Tribunal may, on the application of a tenant, make any of the following orders - … (b) an order that rent payable under an existing or proposed residential tenancy agreement is excessive, having regard to the reduction or withdrawal by the landlord of any goods, services or facilities provided with the residential premises and that, from a specified day, the rent for residential premises must not exceed a specified amount. … (3) Applications on withdrawal of goods or services A tenant may, before the end of a tenancy, make an application that the rent is excessive, having regard to the reduction or withdrawal of any goods, services or facilities provided with the residential premises, even if those goods, services or facilities were provided under a separate or a previous contract, agreement or arrangement. (4) Determination of excessive rent For the purposes of making an order under this section, the Tribunal may declare that amounts payable under a contract, agreement or arrangement under which goods, services or facilities are provided to the tenant are rent. (5) The Tribunal may have regard to the following in determining whether a rent increase or rent is excessive - (a) the general market level of rents for comparable premises in the locality or a similar locality, (b) the landlord's outgoings under the residential tenancy agreement or proposed agreement, (c) any fittings, appliances or other goods, services or facilities provided with the residential premises, (d) the state of repair of the residential premises, (e) the accommodation and amenities provided in the residential premises, (f) any work done to the residential premises by or on behalf of the tenant, (g) when the last increase occurred, (h) any other matter it considers relevant (other than the income of the tenant or the tenant's ability to afford the rent increase or rent). (6) Effect of excessive rent order An order by the Tribunal specifying a maximum amount of rent - (a) has effect for the period (of not more than 12 months) specified by the Tribunal, and (b) binds only the landlord and tenant under the residential tenancy agreement or proposed residential tenancy agreement under which the rent is payable.
3. While not raised by the parties, I am satisfied that Ms Bush so far as she seeks an order under s 44(1)(b) of the RT Act commenced the proceedings within the pendency of the tenancy agreement as required by s 44(3).

The evidence of Ms Bush

1. The evidence of Ms Bush relevantly included the following documents: 1. the email of Ms Bush sent to Mr Menzies on 8 September 2023 (the 8 September Bush 2023 email) (Ex A1, pp 45-49) which relevantly provides: "Under the Residential Tenancies Act 2010, rent reduction is available where a landlord withdraws amenity of the rented premises. You have withdrawn amenity of the above premises by: 1. Falsely presenting this property. … 2 I have been denied the use of the yard as it is totally unusable due to the swamp, the stagnant smelly water and the fact that the ground anywhere near the swamp is often very wet. … 3 The felling of all of the trees in the backyard has completely ruined my privacy. … 4 The felling of the trees has also threatened my security. … 5 You have failed to maintain the property in a reasonable state of cleanliness and repair. Falling to clean and repair the oven and stove, both of which were absolutely filthy, made it impossible for me to use same. … 6 Another example of failing to maintain the property in a reasonable state of cleanliness - Failing to have the excessive soap scum removed from the showers. … 7 Failing to provide a property in a habitable condition is a breach of the Act. The property was not completely habitable. … 8 You are in breach of the Act in that you failed to provide proper security, as a lot of the windows did not lock, putting my security at risk. … 9 You have failed to provide me with the quiet enjoyment of this property which I am legally entitled to, so you are in breach of the Act. … This has been one of the most frustrating and stressful situations I have been through. …" 1. the following details in the 22 December 2023 Bush documents with respect to this claim (Ex A1, p 55): "(1) Due to the property not being ready for vacant possession by the start of the tenancy on 28/6/23, due to: … d) The landlord entered the property without my knowledge and permission on numerous occasions to do works, including a fence which I advised the agent I did NOT want. After I advised that the swamp was a safety and health hazard, the agent advised on 13/7/23 that the Landlord could build a "farm type" fence the next day. I immediately telephoned her, told her I did NOT want a fence, it would be more ugliness, would not completely take care of the safety and would be more upkeep for me to have to attend to, whipper snipping etc, to keep tidy instead of just mowing. When I moved in on 28/7/23, I saw that the fence had been erected, without my knowledge or permission for the Landlord or trades to enter the property. …"

The evidence of Mr Menzies

1. The evidence of Mr Menzies relevantly included the following documents: 1. the 18 January 2024 Cleary statement (Ex R1, p 5): "D.iii. … The landlord added an additional fence to clearly define the boundary of the leased premises for the tenant's usage as she was struggling to understand her area of responsibility. … 1. six coloured photographs, three of which contain the caption "Taken 20/06/2023" depicting the outdoor area of the premises without a wire fence, and three of which contain the caption "Taken 21/07/2023" depicting the outdoor area of the premises with a wire fence (Ex R1, pp 50-55).

Conclusion

1. Having regard to the evidence of parties, I am satisfied that the wire fence was erected within the land in DP4/7338 between 13 July 2023 and 21 July 2023.
2. I am not satisfied that Mr Menzies had not given vacant possession of the premises due to the erection of the wire fence between 13 July 2023 and 21 July 2023. Ms Bush could have moved into the premises from 28 June 2023 but chose not to do so until 28 July 2023.
3. In Makowska v St George Community Housing Ltd [2021] NSWSC 287 (Makowska) at [46], Basten J observed that it is possible that conduct of a landlord may constitute a breach of the tenant's right to quiet enjoyment and a reduction or withdrawal of facilities. However, where the only loss is non-economic loss, such as inconvenience or loss of amenity (as opposed to damage to goods), it would be inappropriate to award damages by way of compensation and provide a reduction of rent, as it would amount to double compensation.
4. In any event, this claim of Ms Bush is misconceived and the proceedings so far as Ms Bush seeks an order under s 44(1)(b) of the RT Act should be dismissed for the following reasons: 1. there is no entitlement for a tenant to obtain an order under s 44(1)(b) of the RT Act where the tenant chooses not to occupy the residential premises; 2. Ms Bush has no entitlement to obtain any relief against Mr Menzies in respect of the swamp water and the felled trees, weeds and debris as set out above; 3. there has been no reduction or withdrawal by Mr Menzies of any goods, services or facilities provided with the premises within s 44(1)(b) of the RT Act except in so far as there has been a failure by him to carry out repairs; 4. to the extent that the claim is based on the matters set out in the 8 September Bush 2023 email, then having regard to the principles in Makowska at [46] and the compensation for non-economic loss awarded to Ms Bush as set out in issue 7 below for the failure to carry out certain repairs, it would be inappropriate to provide a reduction of rent under the tenancy agreement.

Issue 6: whether Mr Menzies should be ordered to provide and pay for alternative storage for Ms Bush

Introduction

1. The dispute between the parties is that Ms Bush asserts that Mr Menzies should provide and pay for alternative storage for her due to the condition of the area underneath the house on the premises, while Mr Menzies assets that under the terms of the tenancy agreement he has no such responsibility.
2. It is unnecessary to set out the evidence of the parties, as it has no relevance to the determination of this issue.

Conclusion

1. Ms Bush did not make any submissions as to the power of the Tribunal under the RT Act to vary the terms of the tenancy agreement to provide that Mr Menzies should provide and pay for alternative storage for her. I am not satisfied that the Tribunal has any such power. This claim of Ms Bush is misconceived, and the proceedings so far as Ms Bush seeks an order that Mr Menzies should provide and pay for alternative storage for her should be dismissed.

Issue 7: whether Mr Menzies should be ordered to pay compensation to Ms Bush

Introduction

1. The claim of Ms Bush for compensation has the following components which I will deal with in turn: 1. $3096.32 for meals due to the filthy, unusable stove up to early February 2024 when she purchased a portable oven; 2. $90.00 for accommodation on 6 July 2023; 3. $10.92 for electricity used between 17 and 27 July 2023; 4. $15,000.00 for non-economic loss.
2. The RT Act relevantly contains the following provisions with respect to the rights of a tenant, the obligations of a landlord and remedies available to a tenant or landlord: 1. section 30: 29 Condition reports (1) A condition report relating to the condition of residential premises on a day specified in the report must be completed by or on behalf of a landlord before or when the residential tenancy agreement is given to the tenant for signing. (2) The landlord or landlord's agent must, before or at the time the tenant signs the residential tenancy agreement, give to the tenant 2 copies, or one electronic copy, of the completed condition report. Maximum penalty - 20 penalty units. (3) The tenant must complete and give one copy of the condition report to the landlord or landlord's agent not later than 7 days after taking possession of the residential premises and both the landlord and the tenant must retain a copy of the report. (3A) Subsection (3) does not apply to the tenant if the landlord or landlord's agent has failed to give to the tenant copies of the condition report in accordance with this section. … 1. section 50: 50 Tenant's right to quiet enjoyment (1) A tenant is entitled to quiet enjoyment of the residential premises without interruption by the landlord or any person claiming by, through or under the landlord or having superior title (such as a head landlord) to that of the landlord. (2) A landlord or landlord's agent must not interfere with, or cause or permit any interference with, the reasonable peace, comfort or privacy of the tenant in using the residential premises. … (4) This section is a term of every residential tenancy agreement. 1. section 52: 52 Landlord's general obligations for residential premises (1) A landlord must provide the residential premises in a reasonable state of cleanliness and fit for habitation by the tenant…. (4) This section is a term of every residential tenancy agreement. 1. section 187: 187 Orders that may be made by Tribunal (1) The Tribunal may, on application by a landlord or tenant or other person under this Act, or in any proceedings under this Act, make one or more of the following orders - … (d) an order as to compensation, … (2) Without limiting the Tribunal's power to make an order as to compensation, the Tribunal may order compensation to be paid for the following - (a) loss of rent, (b) any other breach of a residential tenancy agreement, … (4) The Tribunal must not make an order for - (a) the payment of an amount that exceeds the amount (if any) prescribed by the regulations for the purposes of this section, or … 1. section 190 as set out above.
3. The RT Regulation relevantly includes: 1. clause 39(9) as set out above; 2. clause 40 which makes provision with respect to the monetary limit of the jurisdiction of the Tribunal under s 187(4)(a) of the RT Act: 40 Monetary limit of jurisdiction of Tribunal - s 187(4)(a) of Act For the purposes of section 187(4)(a) of the Act, the amount prescribed is - (a) if the order is with respect to a rental bond - $30,000, or (b) otherwise - $15,000.
4. While not raised by the parties, I am satisfied that Ms Bush so far as she seeks an order under s 187(1)(d) of the RT Act commenced the proceedings within the time specified in cl 39(9) of the RT Regulation.

The claim for compensation for meals due to the condition of the stove and oven

The evidence of Ms Bush

1. The evidence of Ms Bush in addition to the documents set out for issue 2 above relevantly included the following documents: 1. a printout of mobile banking transactions on the Bush account for period from 28 July 2023 to 20 December 2023 with the relevant transactions highlighted in yellow (Ex A1, pp 101-127); 2. a printout of mobile banking transactions on the Bush account for the period from 21 December 2023 to an unspecified date after 4 February 2024 with the relevant transactions highlighted in yellow (Ex A3, pp 52-60).

The evidence of Mr Menzies

1. The evidence of Mr Menzies is set out for issue 2 above.

Conclusion

1. I accept the evidence of Ms Egan in the 23 July 2023 Egan letter that the oven was clean. This evidence is not contradicted by the evidence of Ms Williams in the 28 January 2024 Williams letter.
2. I accept the evidence of Ms Cleary the 18 January 2024 Cleary statement that the stove was working during her inspection of the premises on 17 August 2023.
3. I accept the evidence of Ms Williams in the 28 January 2024 Williams letter that there was a buildup of grease on the stove knobs and broken knob sleeves of the stove on or shortly before 28 August 2023 when she cleaned the premises.
4. In the light of these findings, I am not satisfied that Ms Bush has established that Mr Menzies has breached the following obligations: 1. his obligation under s 52(1) of the RT Act in respect of the cleanliness of the stove. While there was a buildup of grease on the stove knobs and one broken knob sleeve, Mr Menzies took reasonable steps to clean the stove by the cleaning carried out by Kerry Kleen on 17, 18 and 20 July 2023; 2. his obligation under s 63(1) of the RT Act in respect of the stove and oven.
5. It follows that Ms Bush has not established that she is entitled to compensation of $3,096.32 for meals for any breach of the RT Act by Mr Menzies in respect of the condition of the stove and oven, and the proceedings so far as Ms Bush seeks an order that Mr Menzies should pay her compensation for her expenditure on meals should be dismissed. It has been the choice of Ms Bush not to use the stove and oven, rather than any breach of the RT Act by Mr Menzies, that has caused her expenditure on meals.

The claim for compensation for accommodation on 6 July 2023

The evidence of Ms Bush

1. The evidence of Ms Bush is the electronic receipt of Urunga Waters Tourist Park dated 6 July 2023 (the 6 July 2023 Urunga Waters receipt) (Ex A1, p 70).

The evidence of Mr Menzies

1. Mr Menzies adduced no evidence in relation to this claim.

Conclusion

1. I am satisfied on the basis of the 6 July 2023 Urunga Waters receipt that Ms Bush incurred the expense of $90.00 at Urunga Waters Tourist Park for accommodation on 6 July 2023.
2. I am not satisfied that Ms Bush is entitled to an order under s 187(1)(d) of the RT Act that Mr Menzies pay her compensation of $90.00 for her accommodation on 6 July 2023 because there was no breach by him in relation to the ingoing condition report which had been provided to her on 27 June 2023. Ms Bush took possession of the premises on 6 July 2023 when she collected the keys. Pursuant to s 29(3) of the RT Act she had seven days to return the ingoing condition report to Mr Menzies or C&P. Her decision to stay at Urunga Waters Tourist Park on 6 July 2023 was not occasioned by any breach of the tenancy agreement by Mr Menzies. It follows that the proceedings so far as Ms Bush seeks an order that Mr Menzies should pay her compensation for her expenditure on accommodation on 6 July 2023 should be dismissed.

The claim for compensation for electricity used between 17 and 27 July 2023

The evidence of Ms Bush

1. The evidence of Ms Bush is the email of Alinta Energy sent to her on 8 December 2023 recoding that the total kwh consumed between 17 July 2023 and 27 July 2023 were 13 kwhs, and the handwritten notation of "$10.92" thereon by Ms Bush (the 8 December 2023 Alinta email) (Ex A1, p 70).

The evidence of Mr Menzies

1. Mr Menzies adduced no evidence in relation to this claim.

Conclusion

1. I accept the evidence of Ms Bush in the 8 December 2023 Alinta email that electricity for the premises was used between 17 and 27 July 2023 in respect of which she incurred a cost of $10.92. I infer that this electricity was used in connection with the erection of the wire fence between 13 July 2023 and 21 July 2023 as set out above. It follows that Ms Bush is entitled to an order under s 187(1)(d) of the RT Act that Mr Menzies pay her compensation of $10.92.

The reasons for non-economic loss claimed by Ms Bush

1. Ms Bush contends that she is entitled to compensation for the following reasons: 1. the deliberate and extreme false presentation of the premises by Mr Menzies and C&P; 2. the extreme stress, constant frustration and continued intimidation and retaliation on the part of "all parties"; 3. the reduction or withdrawal of the following goods, services or facilities: 1. the deck; 2. adequate ventilation; 3. the use/enjoyment of the yard; 4. the use of the clothesline; 5. privacy which has been destroyed and security which has been severely affected due to removal of numerous trees; 6. the use/enjoyment of the premises as she has been forced to live in a filthy house with no proper cooking amenities, having to shower in someone else's filth and overlooking a mosquito-ridden swamp, for 10 months.

The evidence of Ms Bush

1. It is unnecessary to set out all the relevant evidence of Ms Bush. In addition to the documents set out for issues 2 and 5 above I have relevantly selected the following documents: 1. the report of Dr Mel Huggins (Dr Huggins), a general practitioner, dated 15 November 2023 (the 15 November 2023 Huggins report) (Ex A1, p 128): "Thank you for seeing BEVERLEY. Bev is a lovely 76 y.o. female who has been under my care since July 2023 when she relocated to the area from Tea Gardens 8ev relocated in the context of awaiting for her permanent residence which is being completed within the new development on the Old Pacific Highway. Since her relocatIon, Bev has reported significant anxiety and stress related to her current rental situation. Bev reports that she has had worsening anxiety, stress and poor sleep due to the reported lack of reasonable living conditions related to reported poor insulation and inadequate ventilation. Additionally, 8ev reports that there is stagnant water which attracts mosqitoes. Bev reports concerns about Ross River fever which has been reported in the community. I have referred Bev to a psychologist to assist with management of her stress. I have recently diagnosed 8ev with Raynaud phenomenon, which results in pain and spasm of the vessels in her hands. This is triggered by both cold air and stress. This has resulted in a requirement for medication management. I support Bev's application to the tribunal for review and reconciliation of these issues." 1. the report of Lynda Melville (Ms Melville), a clinical psychologist, dated 15 November 2023 (the 15 November 2023 Melville report) (Ex A1, p 129): "Mrs Beverley Bush was referred by her treating general practitioner, Dr Mel Huggins, at Urunga Medical Centre for psychological counselling in relation to heightened anxiety and stress. The onset of mental health issues has been significantly related to difficulties in relation to the rental property and the lack of responsiveness to her requests for repairs and modifications on the property." 1. the email of Ms Cleary sent to Ms Bush on 22 January 2024 (the 22 January 2024 Cleary email) (Ex A2, p 29) which relevantly provides: "You were shown the boundary at the time of your initial inspection and then again during the 6-weekly inspection, nothing has changed, kindly maintain the property you lease as per the residential tenancy agreement. Attached again for your review, are ingoing photos of the gardens taken the day before your lease commenced. If you are still unsure of your responsibilities, please refer to your Residential Tenancy Agreement conditions page 11, section 59.6. (section attached) As per managements instructions, due to the ongoing harassment from you, I am to only respond to maintenance issues relating directly to the property and those we have not previously addressed. Again, I will take this time to remind you, you are welcome to break your lease at any time, without penalty or notice." 1. the email of Ms Bush sent to Ms Cleary on 29 January 2024 in response to the 22 January 2024 Cleary email (the 29 January 2024 Bush email) (Ex A2, p 30) which relevantly provides: "I cannot believe that you are still clinging to the fallacy that the boundary which I was shown back then is the real boundary, after you have been given a copy of the Council map, showing that the fence is about ¾ of the way up the "adjacent" block. Therefore it should not be my responsibility to pay to have it mowed. However, I have to keep it up to keep the property in some form of control. How dare you say "if I'm unsure of my responsibilities" you seem to be the one who is not sure of my responsibilities. I am not harassing you, I believe it is the other way around. You will not answer emails so I am forced to send another email going over the same information, again and again, only to be ignored again. You keep putting on the bottom of every email "you are welcome to break your lease at any time...." A person only needs to be told that once. I find it to be harassing to have you put this in every email. I would like it to stop. You say "a per management instructions, due to the ongoing harassment........ that you will only respond to maintenance issues relating directly to the property and those we have not previously addressed" Would this be the same management, Grant, the owner of the office who has now refused to attend the property on 3 occasions to view the extreme problem of the swamp which was deliberately hidden from me at the time I inspected the property and who has refused to have anything to do with this serious matter at all? Or would it be the Director, Andree, who has refused to attend the property to check the filth which I complained about and who also refused to arrange a meeting with Grant to come and try to discuss a solution to the many problems. Is it that same management?? Is that "management" aware that you knew that the shower glass had glass cancer and could not be restored BEFORE I MOVED IN and yet you have deliberately kept that information from me for 6 months, while I've been forced to shower in that filth? I have every reason to be extremely upset about that. Again, this must be about the 10th time I'm having to bring this up, the weeds, which were over 9' high were supposed to be cleared "by the holidays or sooner", a small amount were removed on 10th January and nothing since. You refuse to respond. I am a tenant of Cardow and partners and as such, I have a right to enquire about anything regarding my rental, and I have every right to keep contacting you if you ignore my emails."

The evidence of Mr Menzies

1. It is unnecessary to set out all the relevant evidence of Mr Menzies. In addition to the documents set out for issues 2 and 5 above, I have relevantly selected the following documents as typical of a fair larger volume of documents: 1. the 18 January 2024 Cleary statement (Ex R1, p 6): "F. Since the tenant commenced her lease on the 28 June 2023 our office has received 85 emails from her, some threatening and defamatory, noting that within her communications, she is speaking about our agency with malicious intent. We have been contacted by multiple local businesses to advise us the tenant has been slandering our business." 1. the email of Ms Bush sent to Mr Andree Cardow on 26 November 2023 at 9.41pm (the 26 November 2023 at 9.41pm Bush email) (Ex R2, pp 64-65) which relevantly provides: "I am contacting you in relation to your behaviour a couple of days ago when you gave me that dirty, smug look as you were crossing the road. Over the top. Very unprofessional. I've have enough of your intimidation and retaliation and that act, in front of other people, was the last straw! … Due to the CONSTANT intimidation and retaliation I have experienced, by Rachel, Grant and yourself as the Director of the company, I have had enough. I will give you this opportunity - and Grant - to apologise for your behaviour. You have constantly defended Rachel, even in view of evidence of how dirty the rental was, saying things like "the landlord doesn't have to clean the property", "Bev, it's obviously not up to YOUR standard", trying to make out that I was being too "fussy", trying to convince me that the shower soap scum was due to fluoride in the water causing the problem, what rubbish. Photos of the filth have been sent to Grant, but have been ignored. Not good enough. I don't expect to be treated so rudely in public by you or anyone associated with Cardow, ever again." 1. the email of Mr Andree Cardow sent to Ms Bush on 26 November 2023 at 9.45pm in response to the 26 November 2023 at 9.41pm Bush email (the 26 November 2023 at 9.45pm Andree Cardow email) (Ex R2, p 64) which relevantly provides: "This is now outside of work. I have no idea what you are talking about but assuming when I was crossing the pedestrian crossing on Friday...minding my own business! Unless these matters relate to work, stop messaging and harassing me!!" 1. the email of Ms Bush sent to Mr Andree Cardow on 26 November 2023 at 9.58pm in response to the 26 November 2023 at 9.45pm Andree Cardow email (the 26 November 2023 at 9.58pm Bush email) (Ex R2, p 64) which relevantly provides: "You know exactly what I was talking about! You are the one who took your behaviour outside of work. I have never contacted you about anything outside of work before. So your request that "unless these matters relate to work, stop messaging and harassing me" is ridiculous. Even when it WAS work related, and Grant said that I was to deal with you or Rachel regarding the swamp, you, as the Director of the company, have refused to even meet to discuss a solution. The offer of a meeting still stands."

The submissions of Ms Bush

1. The submissions of Ms Bush are relevantly set out in the section of the Bush application setting out the reasons for the orders claimed by her. It is unnecessary to repeat them.

The submissions of Mr Menzies

1. The submissions of Mr Menzies relevantly included the following response in the 25 March 2024 Menzies document to order [25] claimed by Ms Bush (Ex R3): "25.a) The tenant viewed the property and accepted the property 'as is'. There has been no modifications or changes to the leased property with the exception of a fence erected on the rear boundary b) We refute this claim and believe this to be the opposite, to the extent of harassing and stalking the landlords work in the local area, posts on social media, and nasty comments and bullying emails. c) The property was offered/advertised as a 3 bedroom, 2 bathrooms, double carport, air conditioned home at 48a Pilot Street, Urunga. This is what the tenant has received. d) Our most recent Routine Inspection suggests the tenant is using the back deck quite a bit. The deck is large, stable and well maintained. There are lights, balustrades and the deck meets all safety requirements. e) There are 12 windows with screens. The tenants claim is incorrect. f) On recent inspection the clothesline is still standing and in good working condition. The tenant has not reported any issues with the clothesline. g) The tree removal was enforced by Bellingen Shire Council and does not in any way affect the tenants privacy. The property has one neighbour, this neighbour is situated to the front western side of the property. The tree removal in question is situated on the adjoining block that attaches to the rear northern side of the property. h) The 'security issue' area the tenant is referring to is on the other side of a 7 foot colourbond boundary fence. It is a council reserve/walkway. Why does the tenant feel this graffiti is new? Does she have evidence of this, and if so has she alerted the Police to the 'undesirables' walking on public areas?"

Consideration

1. In Hawkesbury Nominees Pty Ltd v Battik Pty Ltd [2000] FCA 185 (Hawkesbury) at [37], [51]-[53], Hill J relevantly said (with Gallop at [1] agreeing): "[37] The covenant for quiet enjoyment may be breached by the landlord (or those claiming under him) interfering with the physical occupation of the land by the tenant: Hill & Redman's Law of Landlord and Tenant (18th ed) para 936, note 1. The principal, as the cases discussed below indicate, may be expressed in the following way: there will be a breach of the covenant for quiet enjoyment where the ordinary and lawful enjoyment of the demised premises is substantially interfered with by the acts of the lessor or those lawfully claiming under him, whether or not the title to the land or the possession of the land is otherwise affected. Whether what is complained of amounts to a substantial interference will be a question of fact. A breach may result either from acts of commission or omission by the landlord: see generally, Dennett v Atherton (1872) 7 QB 316, 326-7, Robinson v Kilvert (1889) 41 Ch D 88 at 97." "[51] Although a lease creates an interest in land and covenants in the lease run with the land, a lease is a contract … and in the event of a breach of the lease the party not in breach is entitled to damages for the breach. The measure of damages will be that applicable to contract, … [52] … where damages are to be assessed for breach of contract the damages are the means of placing the plaintiff in the position the plaintiff would have been in had the contract been performed … [53] ... The fundamental principle is that so far as possible by a monetary award the plaintiff is to be placed in the position he or she would have occupied if the contract had been fulfilled …"
2. The principles in Hawkesbury at [37], [51]-[53] are applied in the Tribunal in respect of the breach of the covenant for quiet enjoyment in a residential tenancy agreement under the RT Act: see, for example, Tanner v NSW Land and Housing Corporation [2023] NSWCATCD 24 at [25].
3. There can be a breach of the covenant for quiet enjoyment without a direct and physical interference with the tenant's use and enjoyment of land. A breach may occur where there are complaints of the making of noise or the emanation of fumes, of interference with privacy or amenity, and other complaints of a kind commonly forming the subject matter of actions for nuisance. The covenant will be breached if the premises are rendered unfit from a reasonable point of view for the purpose for which they are granted: Telstra Corporation Ltd v Sicard Pty Ltd [2009] NSWSC 827 at [21] (Brereton J).
4. In is uncontroversial that the Tribunal may award damages for non-economic loss in the nature of distress and inconvenience for breach of the landlord's obligation concerning quiet enjoyment in a residential tenancy agreement under the RT Act. Damages for distress and disappointment are able to be assessed at large. They are not constrained by the application of the limitations of recovery in Part 2 of the Civil Liability Act 2002 (NSW). It is not correct that an award for damages for distress and disappointment should be only made in a token or nominal sum. The assessment of the sum for this head of damages is undertaken in the individual case by an evaluative process applying a sense of fairness and justice to the circumstances proved: Compass Housing Services Co Limited t/as Home in Place v Gower [2023] NSWCATAP 24 (Compass) at [30]-[31].
5. I am not satisfied that Ms Bush has established that there was the deliberate and extreme false presentation of the premises by Mr Menzies and C&P. In any event, if she had established any such conduct, it would not have constituted a breach of the tenancy agreement and so could have not have given rise to an entitlement to an order for compensation under s 187(1)(d) of the RT Act.
6. I am satisfied that there is considerable animosity by Ms Bush towards Mr Menzies and C&P. The email correspondence of Ms Bush comprised by the 26 November 2023 at 9.41pm Bush email, the 26 November 2023 at 9.58pm Bush email and the 29 January 2024 Bush email is typical of the language used by Ms Bush in a larger volume of documents she sent to staff of C&P. I do not accept that Ms Bush has established continued intimidation and retaliation on the part of Mr Menzies and C&P. Having commenced the proceedings on 29 September 2023, Ms Bush has continued in her email correspondence to agitate issues which had been fully set out in the Bush application. I am not satisfied that the response of C&P set out in the 26 November 2023 at 9.45pm Andree Cardow email and the 22 January 2024 Cleary email was continued intimidation and retaliation.
7. I accept the evidence of Dr Huggins in the 15 November 2023 Huggins report and Ms Melville in the 15 November 2023 Melville report that Ms Bush has experienced heightened anxiety and stress due to the failure of Mr Menzies to have carried out the outstanding repairs to the premises referred to in relation to issue 2 above. Having regard to the principles in Compass at [30]-[31], I find that Ms Bush is entitled to an order under s 187(1)(d) of the RT Act for compensation of $500.00.
8. I am not satisfied that Ms Bush has established that Mr Menzies has breached his obligation under s 50(1) and (2) of the RT Act for the following reasons: 1. as to the deck, she has not established that the cockspur coral trees and other vegetation being cut down and left on the ground between 21 and 27 June 2023 caused the presence of mosquitoes. Further, she has not established that the felling of cockspur coral trees and other vegetation occurred on the premises and/or after the commencement of the tenancy agreement on 28 June 2023. In any event, she has not adduced evidence establishing that the premises thereby have been rendered unfit from a reasonable point of view for the purpose for which they are granted; 2. as to adequate ventilation, she has not established that the presence of some windows and doors without screens caused inadequate ventilation within the dwelling on the premises. Further, in this regard there has been no relevant action by Mr Menzies since the commencement of the tenancy agreement on 28 June 2023; 3. the use/enjoyment of the yard, I accept that Mr Menzies entered the premises and constructed the wire fence without her permission between 13 July 2023 and 21 July 2023. However, she has not adduced evidence establishing that the wire fence has not substantially interfered her ordinary and lawful enjoyment of the premises. Further, she has not adduced evidence establishing that the premises thereby have been rendered unfit from a reasonable point of view for the purpose for which they are granted. On the contrary, Mr Menzies is not requiring compliance with cl 59.6 and special condition 3 of the tenancy agreement in respect of that part of the yard which is on the side of the wire fence furthest from the house; 4. as to the use of the clothesline, she has not adduced evidence establishing that her use of the clothesline has been prevented or impeded, and the loss of its use has substantially interfered her ordinary and lawful enjoyment of the premises. Further, she has not adduced evidence establishing that the premises thereby have been rendered unfit from a reasonable point of view for the purpose for which they are granted; 5. as to the destruction of her privacy and the severe affect upon her security due to removal of numerous trees, she has not established that the felling of cockspur coral trees and other vegetation occurred after the commencement of the tenancy agreement on 28 June 2023. In any event, she has not adduced evidence establishing that the premises thereby have been rendered unfit from a reasonable point of view for the purpose for which they are granted; 6. as to the use/enjoyment of the premises due to the lack of cleanliness of the dwelling, with no proper cooking amenities, having to shower in someone else's filth and overlooking a mosquito-ridden swamp, for 10 months, she has not established that there are no proper cooking amenities, and the shower is filthy. Nor has she established that the felling of cockspur coral trees and other vegetation occurred on the premises and/or after the commencement of the tenancy agreement on 28 June 2023. In any event, she has not adduced evidence establishing that the premises thereby have been rendered unfit from a reasonable point of view for the purpose for which they are granted.
9. The heightened anxiety and stress otherwise experienced by Ms Bush in respect of the matters in respect of which she has alleged Mr Menzies breached his obligation under s 50(1) and (2) of the RT Act have substantially arisen because of her mistaken view as to the breaches of the RT Act by Mr Menzies and her rights against him. It follows that Ms Bush has not established that she is otherwise entitled to an order for compensation under s 187(1)(d) of the RT Act against Mr Menzies.

Orders

1. I make the following orders: 1. The order made on 17 May 2024 allowing the applicant to seek the orders in the document which is pages 1 and 2 of the bundle of documents filed on 1 March 2024 so far as paragraphs 1, 4 except so far as the cleaning of the oven and flue, 6 to 12, 24 and 25 except for the last two dot points is varied by adding "16 to 18 except for the weeds on the fence and the removal of the fence" after "12". 2. The respondent is to carry out the following repairs to the premises the subject of the residential tenancy agreement between the applicant and himself by 4 July 2024: 1. the floorboards in the loungeroom approximately 1.5 metres from the main bedroom where the previous repair has come away; 2. the knob of the stove with a detached sleeve; 3. the oven door seal; 4. the sliding closet door in the second bedroom. 1. The applicant may instal safety rails for each of the toilet and shower in the ensuite, the toilet in the laundry, and the bath in the main bathroom of the premises conditional on the safety rails being installed by a licensed builder. 2. The respondent is to pay the sum of $510.92 to the applicant immediately. 3. The proceedings are otherwise dismissed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 December 2024