Compass Housing Services Co Limited t/as Home in Place v Gower

The factual background

1. The premises are located on the first level in a building comprising four units and two parking spaces owned by the landlord and are above premises on the ground floor which have been rented by the landlord to another tenant (the neighbouring tenant).
2. On 15 August 2012, the landlord and the tenant entered into a residential tenancy agreement of the premises for a term of 26 weeks commencing on 15 August 2012 (the tenancy agreement).
3. Clause 14.3 of the tenancy agreement provides: "Tenant's right to quiet enjoyment 14. The landlord agrees: … 14.3 that the landlord or the landlord's agent will take all reasonable steps to ensure that the landlord's other neighbouring tenants do not interfere with the reasonable peace, comfort or privacy of the tenant in using the residential premises."
4. Since 15 February 2013, the tenant has continued in possession of the premises pursuant to the terms of the tenancy agreement.
5. On 25 February 2022, the tenant commenced proceedings SH 22/08696 against the landlord in which he sought relief under the RT Act (the SH 22/08696 proceedings).
6. On 19 April 2022, the Tribunal made the following order in the SH 22/08696 proceedings (the 19 April 2022 order): "1. By consent, the landlord agrees to abide by the residential tenancy agreement at all times maintaining the peace comfort and privacy of the tenant by following up all reports of noise and nuisance and taking all action available to them. They agree to this order because it is a term of the residential tenancy agreement and not by way of any admission."

The proceedings between the parties in the Tribunal

1. On 13 July 2022, the tenant as the applicant commenced proceedings SH 22/31480 against the landlord as the respondent by filing a social housing application relevantly containing the following details under the heading "4 ORDER DETAILS: 1. under the subheading "A WHAT ORDERS DO YOU WANT?": "s187(1)(b) An Order that requires an action in performance of a residential tenancy agreement. s187(1)(d) An Order as to compensation." 1. under the heading "B WHAT ARE YOUR REASONS FOR ASKING FOR THE ORDERS?": "It is in my opinion the landlord Home In Place, have breached the Residential Tenancies Act 2010 s50 (3) by they allowing a neighbouring tenant to continually breach s51 (1) (b) (c) (d), and s51 (2) (a) (b), and The landlord had also breached Set Orders of NCAT Hearing SH 22/08696, dated March 21, 2022, by they failing to comply with such Orders. …"
2. On 29 August 2022, the Tribunal heard the proceedings and reserved its decision.
3. On 24 October 2022, the Tribunal relevantly made the following order and published reasons for its decision (the Tribunal Decision): "1 Order that pursuant to section 187 (1) (d) of the Residential Tenancies Act 2010 that the respondent is to pay the applicant $5000 in compensation immediately."

The Tribunal Decision

1. In the Tribunal Decision, the Tribunal relevantly: 1. summarised the information in sections 4A and B of the social housing application, the SH 22/08696 proceedings and the 19 April 2022 order (at [1]-[5]); 2. set out ss 50 and 51 of the RT Act and cl 14.3 of the tenancy agreement (at [6]-[8]); 3. summarised the evidence of the tenant from 21 April 2022 to 6 August 2022 involving the conduct of the neighbouring tenant (at [9]-[11]); 4. summarised the evidence and submissions of the landlord (at [12]-[25]); 5. summarised the allegations of the tenant in the Tribunal file in the SH 22/08696 proceedings and submissions of the landlord in response to those allegations (at [26]-[27]); 6. accepted the tenant's evidence as to the events which had taken place, and which led to him making the social housing application (at [28]-[33]); 7. found that the tenant was entitled to compensation by reason that since 19 April 2022 the landlord did not take "all reasonable steps" to ensure that the neighbouring tenant did not interfere with the reasonable peace, comfort or privacy of the tenant and breached its duties under s 50(1) and (3) of the RT Act and cl 14.3 of the tenancy agreement (at [34]-[44]); 8. dealt with the question of what order should be made (at [45]-[51]): "[45] If the landlord has breached its obligations under the RT Act, it is open to the Tribunal to award compensation to the tenant under s187(1)(d) of the RT Act. The Tribunal can take into account distress and inconvenience in determining the damages (see Residential Tenancies Law and Practice New South Wales, 8th Edition by Christopher Adkins, Peter Christenson and Allan Anforth, (Anforth) at [2.187.5] and the cases cited there). [46] Damages for non-economic loss are assessed on the basis of prevailing general standards in the community, having regard to the subjective experience of the innocent party arising out of the breach: O'Brien v Dunsdon (1965) 39 ALJR 78. [47] The applicant has suffered raucous sounds for extended periods at all hours of the night and day, threats, intimidation, objects striking his windowpanes, mental distress and physical interference in terms of the "parking in" of his motor vehicle. [48] In my opinion, the seriousness of this case is accentuated by: (1) Based on the Tribunal file in the Earlier Proceedings, the applicant has complained of substantially the same alleged conduct since early in 2020 - a period of some 2 years eight months. (2) The fact that the respondent had issued breach notices to the neighbouring tenant on 8 April 2020 and 11 February 2021 and a Notice of Termination on 1 June 2021 - yet the conduct has continued. (3) The fact that a consent order with the neighbouring tenant was entered into on 21 July 2021 pursuant to which the neighbouring tenant was required by the Tribunal to comply with his residential tenancy agreement by not causing or permitting any interference with the reasonable peace comfort or privacy of, in this case, the applicant. (4) In addition the consent order provided that if the orders are not complied with then at any time before 21 January 2022 the respondent had the opportunity to re-list its application. Yet, the respondent omitted to re-list its application against the neighbouring tenant. (5) The fact that the respondent issued yet another Notice of Termination for the neighbouring tenant which was to be determined in the Tribunal on 21 March 2022 but there was no evidence before the Tribunal as to what occurred with this Notice of Termination. [49] In Marsh v Breen [2012] NSWCTTT 400 (5 October 2012) the Tribunal awarded compensation of $3,478.82 for the loss of quiet enjoyment for 147 days due to raucous tenants and uncovered floor boards in the apartment above the premises. In Parrott v New South Wales Land and Housing Corporation (Social Housing) [2010] NSWCTTT 254 (9 June 2010) the Tribunal made an award of $2,400.00 non-economic loss to a tenant following 18 months of anti-social conduct by her neighbour (who was a tenant of the same landlord), including loud and abusive language and public nakedness. [50] Taking into account the comparative awards of compensation in Anforth at [2.187.7], the objective seriousness of this matter and allowing for inflation, I consider that the applicant is entitled to an order under section 187 (1) (d) of the RTA of compensation in the sum of $5000 for the failure by the respondent to take all reasonable steps to ensure that the neighbouring tenant of the applicant did not interfere with his reasonable peace, comfort or privacy and the subsequent mental distress and physical interference sustained by the applicant. [51] The order of the Tribunal will be: (1) Order pursuant to section 187 (1) (d) of the Residential Tenancies Act 2010 hat the respondent is to pay the applicant $5000 in compensation immediately."

The history of the appeal

1. On 7 November 2022, the landlord as the appellant commenced proceedings 2022/00335615 against the tenant as the respondent by filing a notice of appeal relevantly containing the following details under the heading "6 GROUNDS FOR APPEAL: 1. under the subheading "A ORDERS CHALLENGED ON APPEAL": "Order pursuant to section 187(1) (d) of the Residential Tenancies Act 2010 hat [sic] the respondent is to pay the applicant $5000 in compensation immediately." 1. under the subheading "B GROUNDS OF APPEAL": "1 The Senior Member erred at paragraphs 48 and 50 by taking account of irrelevant considerations in determining the 'seriousness of this case' and, therefore, the amount of compensation to award the Respondent, namely: (a) previous complaints made by the Respondent in the Earlier Proceedings (as defined in paragraph 3 of the decision) which had already been determined by the Tribunal in a separate decision and were thus 'res judicata' (subparagraph 48(1)); and (b) the fact that the neighbouring tenant's conduct continued despite the Appellant issuing earlier breach notices (subparagraph 48(2)). The consequences of alleged inaction by the Appellant was less, not more, significant in circumstances where the neighbouring tenant's alleged misconduct had not been altered by the Appellant previously issuing breach and termination notices. 2 The Senior Member erred at paragraphs 49 and 50 in providing inadequate and illogical reasons in determining the amount of compensation payable by the Appellant to the Respondent in light of previous awards of compensation made by this Tribunal." 1. under the subheading "C ORDERS THE NCAT APPEAL PANEL SHOULD MAKE": "1. That the orders made by Senior Member Archibald in respect of NCAT File Number SH22!31480 be set aside. 2. The appeal be allowed. 3. The respondent is to pay the appellant's costs of the Notice of Appeal as agreed or assessed."
2. The tenant did not file a reply to appeal.

The hearing of the appeal

1. On 31 January 2023, we heard the appeal. The landlord was represented by Ms K Hall. The tenant represented himself.
2. The landlord relied on a bundle of documents which had been filed on 14 December 2022 which included the documents relied by the landlord and the tenant before the Tribunal.
3. The tenant relied on a bundle of documents which had been filed on 11 January 2023.
4. In addition to relying on their respective documents, the landlord and the tenant made oral submissions.
5. The landlord indicated that it did not press its application that the tenant pays its costs of the appeal.
6. At the conclusion of the hearing, we reserved our decision.

The scope and nature of internal appeals

1. Internal appeals may be made as of right on a question of law, and otherwise with leave (that is, the permission) of the Appeal Panel: s 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act).
2. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 the Appeal Panel set out at [13] a non-exclusive list of questions of law, which relevantly includes whether there has been a failure to provide proper reasons and whether the Tribunal took into account an irrelevant consideration.
3. In Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 40; [1986] HCA 40 Mason J explained the ground of taking into account irrelevant considerations (Gibbs CJ at 30 and Dawson J at 71 agreeing): "In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard ... "
4. A damages appeal, which is an appeal from an exercise of discretion by a judge, whose wrongful exercise must be shown in accordance with the principle in House v R (1936) 55 CLR 499 (House v The King) at 504-5; [1936] HCA 40, raises a question of law: Jones v Bradley [2003] NSWCA 81 at [117] (Santow JA) (Meagher JA at [1] and Beazley JA at [2] agreeing); Li v Bonestroo [2022] NSWCATAP 2 at [39]-[40].
5. In House v The King at 504-5 Dixon, Evatt and McTiernan JJ stated: "The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution, for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."
6. The Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including but an order that the appeal is to be dismissed: s 81(1)(a) of the NCAT Act.
7. Rule 25(4)(b) of the Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules) relevantly provides that in the case of an appeal from a decision of the Tribunal in proceedings under the RT Act an internal appeal must be lodged within 14 days from the day on which the appellant was notified of the decision to be appealed or given reasons for the decision.

The issues

1. We are satisfied that the appeal was commenced within the time of 14 days prescribed under r 25(4)(b) of the NCAT Rules.
2. The two grounds of appeal arise for determination. We are satisfied that they each raise a question of law, and accordingly the landlord can appeal as of right.

Ground of Appeal 1

1. 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: Torpey v Stewart [2021] NSWCATAP 248 at [24].
2. 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: Moore v Scenic Tours Pty Ltd (No.4) [2022] NSWSC 270 at [116]-[117].
3. In a case concerned with excessiveness of an award of general damages, the court should not seek out a norm or standard from other decisions by which the award under challenge could be identified as disproportionate. However, the court may have reference to other decisions as a transparent way of determining an issue of principle, namely, whether awards of damage for distress and inconvenience are merely nominal or not: Moore v Scenic Tours Pty Limited (No.2) [2017] NSWSC 733 (Moore v Scenic Tours Pty Limited (No.2)) at [914]-[917].
4. The rule as to res judicata can be stated by saying that, where an action has been brought and judgment has been entered in that action, no other proceedings can thereafter be maintained on the same cause of action: Jackson v Goldsmith (1950) 81 CLR 446 at 466 (Fullager J); [1950] HCA 22. A judgment or order by consent is a res judicata: Kinch v Walcott [1929] AC 482 at 493 (Lord Blanesburgh); Spencer Bower and Handley: Res Judicata, KR Handley (LexisNexis, 5th ed, 2019), at [2.16].
5. The rule as to res judicata has been held to apply to a predecessor of the Tribunal: Free v Thomas [2009] NSWSC 642 at [23]-[24]. We are satisfied that this rule also applies to the Tribunal.
6. The Tribunal did not contravene the rule as to res judicata as it did not assess the damages to which the tenant was entitled for any conduct of the landlord prior to 19 April 2022. We are satisfied that the Tribunal was entitled to take into account the matters in the Tribunal file in the SH 22/08696 proceedings in evaluating the seriousness of the conduct of the landlord since 19 April 2022. Even if those matters have already been the subject of an award for compensation, their existence and character forms part of the context for the assessment of the seriousness and other relevant matters for the later period.
7. We are satisfied that the Tribunal was entitled to take into account earlier breach notices referred to in the Tribunal file in the SH 22/08696 proceedings. The fact that the conduct of the neighbouring tenant continued following the issue of earlier breach notices indicates that the landlord failed to take all action available to it which might have included taking proceedings to seek a termination order based on the termination notice issued.
8. For these reasons the Tribunal did not make an error of law by taking into account irrelevant considerations in assessing the compensation. It follows that we reject ground of appeal 1.

Ground of Appeal 2

1. In NSW Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231 (Orr) Bell P at [66], [68], [70], [71] and [77] set out the following principles with respect to the adequacy of reasons of the Tribunal (with Ward JA at [109] agreeing): "[66] In the context of appellate review of the adequacy of reasons, the function of an appellate court is to determine not the optimal level of detail required in reasons for a decision but rather the minimum acceptable standard: Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [48] (Resource Pacific). The standard is not one of perfection: Bisley Investment Corporation v Australian Broadcasting Tribunal (1982) 40 ALR 233 at 255 (Bisley)." "[68] In terms of the former parameter, the quantity (or detail) of reasons, necessary for those reasons to be adequate may vary both with the nature of the decision maker, i.e. whether or not it is a court of tribunal, and, if the latter, possibly the type of tribunal, and the nature of the question being decided: Wainohu v New South Wales (2011) 243 CLR 181; [2011] HCA 24 at [56] per French CJ and Kiefel J (Wainohu). Thus even superior courts are not required to give reasons for every interlocutory decision: Wainohu at [56], [98], Hogan v Hinch (2011) 243 CLR 506; [2011] HCA 4 at [42]; Lodhi v Attorney General (NSW) [2013] NSWCA 433; 241 A Crim R 477 at [29]; R v Kay; Ex parte Attorney-General (Qld) [2017] 2 Qd R 522; [2016] QCA 269 at [27]) and other aspects of decision making such as findings on pure credibility or matters that necessarily call for estimation or impression may require less or only allow for limited reasoning to be exposed: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 280 but cf. Camden v McKenzie [2008] 1 Qd R 39; [2007] QCA 136 at [34], Pollard at [65] and see the discussion in Resource Pacific at [48]−[58]." (emphasis in original) "[70] As to the latter parameter identified by Basten JA in Resource Pacific, namely the quality of reasons, it is generally accepted that the sheer volume of work undertaken by tribunals is such that a perhaps more relaxed standard of review of reasons with corresponding compensation for linguistic infelicities is appropriate than may be the case when an appellate court is hearing an appeal from another court." (emphasis in original) [71] That having been said, even in the less formal setting of a tribunal which has significant powers the exercise of which is capable of affecting the lives of citizens in profound ways, there are certain minimum characteristics that a Tribunal's reasons must possess. These are really supplied, in relation to the Tribunal, by s 62(3) of the CAT Act which, as noted at [52] above, requires there to be set out in reasons (when requested by a party): (a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based, (b) the Tribunal's understanding of the applicable law, and (c) the reasoning processes that lead the Tribunal to the conclusions it made. [77] These principles include the following: (i) "Decision-makers commonly express their reasons sequentially; but that does not mean that they decide each factual issue in isolation from the others. Ordinarily they review the whole of the evidence, and consider all issues of fact, before they write anything. Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole": Re Minister for Immigration and Multicultural Affairs, Re; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165; [2003] HCA 30 at [14] (Gleeson CJ); (ii) the court should not read passages from the reasons for decision in isolation from others to which they may be related: Re Maria Politis v Commissioner of Taxation [1988] FCA 739 at [14]; 20 ATR 108 at 111; (iii) the reasons must be read fairly and as a whole: Ex parte Applicant at [147] per Kirby J; Wu Shan Liang at 291; Bisley at 251; (iv) the reasons recorded ought not to be inspected with a fine tooth-comb attuned to identifying error: Pozzolanic at 287; Wu Shan Liang at 272, 291; (v) there should be a degree of tolerance for looseness in the language of the tribunal, unhappy phrasing of the tribunal's thoughts or verbal slips: Pozzolanic at 287, Wu Shu Liang at 272 and 291."
2. The observations in Orr at [66], [71] and [77] have been recently applied by the Appeal Panel: Origin Concepts Pty Ltd v Wynne [2022] NSWCATAP 31 at [20]-[23]; P8 Auto Ltd t/as European Automotive Ballina v Dolling [2022] NSWCATAP 41 at [18].
3. We are satisfied that the Tribunal provided adequate reasons for its decision as to compensation. As set out in Moore v Scenic Tours Pty Limited (No.2) at [914]-[917], earlier decisions are not to be regarded as establishing a norm or standard by which the award under challenge could be identified as disproportionate. The Tribunal was not obliged to determine the amount of compensation in the light of earlier decisions. There was no illogicality in its reasons.
4. For these reasons the Tribunal did not make an error of law by providing inadequate and illogical reasons in determining the amount of compensation. It follows that we reject ground of appeal 2.

ORDERS

1. We make the following orders: 1. the appeal is dismissed; 2. there is no order as to the costs of the appeal. 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: 02 February 2023