This application was remitted by the Appeal Panel for hearing in the Consumer and Commercial Division of the Tribunal on all issues in dispute between the applicant and the respondent. The Appeal Panel determined that there was a written residential tenancy agreement between the applicant as tenant and the respondent as landlord for the purposes of s 10(b) of the Residential Tenancies Act 2010 NSW ("RTA") and that the Tribunal had jurisdiction under the RTA to hear and determine the application.
For the period from 24 March 2016 to 30 May 2016, the applicant occupied residential premises at Chippendale NSW ("premises"). The premises are a two level three (3) bedroom strata unit within a building of approximately 50 residential units.
On the lower level of the premises there is a foyer (at the entry), a bathroom and a stairwell (to the upper level), a master bedroom and en-suite bathroom, a second bedroom, and a courtyard (opening off the master bedroom and the second bedroom).
The upper level of the premises contains a kitchen and dining area, as well as a third bedroom. The floor area of the third bedroom was formerly a living room with terrace and balcony areas. There is also an area converted from a laundry into a bathroom containing toilet, vanity and shower.
At all material times, the applicant used the third bedroom on the upper level. During the period from 24 March 2016 to 30 May 2016, the other occupants of the premises were the respondent, who used the second bedroom, and Paul Dixon ("Mr Dixon"), who used the master bedroom.
The applicant started his occupancy of the premises on or about 24 March 2016 having responded to an online advertisement for 'fully furnished share accommodation', at $290.00 per week 'plus bills'. There is no dispute that shortly before 24 March 2016 the respondent had placed an advertisement on 'Gumtree' for shared accommodation at the premises. However, the parties do not agree on the content of the online advertisement at that time.
There is also no dispute that on or about 24 March 2016, the respondent received from the applicant amounts totalling $1,740.00, comprising, as stated in a text message: "… 4 weeks deposit and 2 weeks rent. Bills not included. 2 weeks' notice required. Thanks". That text message was preceded by an earlier text message from the respondent to the applicant which stated: "Received $300 as deposit for room at (the premises). Balance on move in tomo (sic)".
Since the applicant left the premises on or about 30 May 2016, the parties have been in dispute with regard to the bond amount ($1,160.00) received by the respondent on or about 24 March 2016, as well as a claim for compensation by the applicant, including for non-economic loss, damage to personal property, loss of bargain damages, moving costs, temporary accommodation, and damages for breach of the applicant's quiet enjoyment of the premises. The applicant alleges that he was harassed and physically threatened by the respondent during his occupancy of the premises, that his privacy was disrupted by the respondent, that there was a reduction of service and facility at the premises (in particular, the applicant's use of a private shower and internet services), and that he was wrongfully locked-out of the premises on 30 May 2016.
The applicant's original application to the Tribunal was dismissed on 20 July 2016. The Tribunal found that the text messages forwarded from the respondent to the applicant on or about 24 March 2016 were a form of writing for the purposes of s 10(b) of the RTA; but nevertheless the Tribunal did not have jurisdiction to determine the applicant's application for orders of the Tribunal because the parties had not agreed on a fixed term and this was an essential requirement in concluding the existence of a residential tenancy agreement.
The applicant then appealed the Tribunal's decision of 20 July 2016. The Appeal Panel determined that the definition of a residential tenancy agreement in s 13 of the RTA does not state that there is a requirement for an agreement to contain a fixed term to amount to a residential tenancy agreement and that the RTA in s 3(1) expressly provides for the existence of a periodic agreement which is defined as a residential tenancy agreement that is not a fixed term agreement. The Appeal Panel found the Tribunal at first instance had erred in law by concluding that in the absence of a fixed term there was no residential tenancy agreement for the purposes of the RTA: Corcoran v Far [2017] NSWCATAP 16, [46] - [48].
Apart from the original application of the applicant which was the subject of the appeal, there were also proceedings in the Tribunal brought by the respondent. It is necessary to put the applicant's claim in this proceeding in the context of the procedural history of all applications before the Tribunal in this Division and in the Appeal Panel.
On 25 May 2016, the respondent lodged an application (File No RT 16/24568) seeking orders against the applicant under s 90 (Termination of occupancy due to serious damage/injury) and s 187 (1) (d) of the RTA (compensation for rent arrears and damage to the premises).
The respondent's application stated his reasons for making the application as follows:
1. The respondent (i.e. the applicant in this application, Mr Corcoran) is refusing to not use a leaking shower that is causing damage to the premises and poses a risk of fire or electrocution to nearby lighting;
2. The respondent has not paid rent from 8 April 2016 to date;
3. The applicant (i.e. Mr Far) requests an order for unpaid rent, building damage & wage loss as a result of these proceedings."
A letter from Mr Far accompanied the application and sought an urgent hearing from the Tribunal. The letter stated:
"The respondent is refusing repeated requests to stop using a leaking shower. Water is leaking from the shower directly into a common area ceiling fitted with two lights and wires. There is a real risk of fire and/or electrocution. There are approximately 50 apartments in the building. The respondent claims it is his right to use the shower and will not vacate the premises despite notice being given."
The respondent's application came before the Tribunal on 30 May 2016 for Conciliation and Hearing (Group List). The Tribunal File discloses a Conciliation Report which refers to an issue of whether there was a written residential tenancy agreement for the purposes of the Tribunal's jurisdiction under the RTA, in s 10, dealing with the application of the RTA to occupants of shared households. The Tribunal made directions for the parties to exchange documents; in Mr Far's case his documents were to be provided by 6 June 2016 and in Mr Corcoran's case his documents (including any cross application) were to be provided by 13 June 2016.
On 3 June 2016 the Tribunal received an email from Mr Far advising that he wished to discontinue the proceedings.
On 7 June 2016 the Tribunal ordered the dismissal of the proceedings constituted by File No 16/24568 on the basis of the withdrawal contained in the email of 3 June 2016: see s 55(1) (a) of the Civil and Administrative Tribunal Act 2013 ("NCAT Act").
On 9 June 2016 Mr Corcoran lodged his application (File No 16/27121).
On 27 June 2016, Mr Corcoran's application came before the Tribunal for Conciliation and Hearing (Group List). Mr Far did not attend the hearing. The Tribunal noted the issue of jurisdiction under the RTA and made directions for the parties to exchange documents in advance of a formal hearing.
At a formal hearing of the application in File No RT 16/27121 on 20 July 2016 the Tribunal dismissed Mr Corcoran's application.
On 5 August 2016 Mr Corcoran lodged a Notice of Appeal (File No AP 16/36071).
The appeal was heard by the Appeal Panel on 28 September 2016. There was no appearance on that occasion by Mr Far.
On 25 January 2017 the Appeal Panel published orders and reasons which allowed the appeal and remitted Mr Corcoran's application to the Consumer and Commercial Division of the Tribunal for hearing on all issues in dispute.
On 27 February 2017 the remitted matter constituted by File No RT 17/03857 came before the Tribunal for directions. There was no appearance by Mr Far. The Tribunal made orders and directions for the parties to exchange documents in support of their respective cases, for outline submissions to be exchanged and also granted leave for Mr Corcoran to issue a summons to NSW Police limited to incidents and reports at the premises between 1 March 2016 and 30 May 2016.
At the return of summons on 20 March 2017 there was no appearance by Mr Far. No documents had been produced by NSW Police in answer to the applicant's summons so the summons was adjourned to the formal hearing on 27 March 2017. The purpose of the adjournment was to enable the applicant to make further enquiries with NSW Police as regards production of any documents in answer to the summons to produce.
At the formal hearing on 27 March 2017, there was no appearance by Mr Far. By determination of the presiding member, the application was adjourned to consider as a preliminary issue whether the Tribunal is empowered to make an order for payment of money in the amount of $19,319.00. It was noted that the applicant submitted there was jurisdiction to a monetary limit of $30,000.00 (regardless of the amount of the bond) because his case involved a rental bond. The Tribunal directed Mr Corcoran to provide submissions as regards the proper construction of cl 23 of the Residential Tenancies Regulation 2010 NSW ("Regulation").
On 29 March 2017 Principal Member K Rosser set aside the order for a hearing on the issue of jurisdiction only and directed that the issues of jurisdiction (i.e. cl 23 of the Regulation) and the substance of the claim be heard together. The respondent Mr Far was also given an opportunity to provide submissions on the cl 23 issue and it was noted that the substantive issues in dispute would be heard on the next occasion taking into account any documents provided by the parties in accordance with the directions made on 27 February 2017.
Both parties appeared in person at the formal hearing on 8 May 2017.
The applicant relied upon the following documents:
1. A bundle of documents (comprising 24 pages) which had been provided to the Tribunal on 15 July 2016 for File No 16/27121, including a chronology of events, the applicant's affidavit sworn 15 July 2016, a medical certificate, internet information for claims on damaged property and internet costs, an invoice for accommodation expenses, and rent comparative evidence;
2. A further bundle of documents received by the Tribunal on 6 March 2017 comprising a 'Gumtree' listing of the premises by the respondent and photographs of the bathroom on the first floor of the premises taken on 21 May 2016;
3. The applicant's outline of submissions (8 pages) received by the Tribunal on 17 March 2017;
4. The applicant's submissions on monetary limit (2 pages) received by the Tribunal on 28 March 2017.
The respondent relied upon the following documents:
1. A signed statement of Mr Dixon;
2. A copy of the respondent's text message to the applicant on 24 March 2016;
3. A copy of .a document headed 'Notice' addressed to the applicant by the respondent and bearing date 17 May 2016;
4. A statement of electrician David Gill dated 28 May 2016;
5. A photograph of the shower recess in the bathroom on the first floor of the premises;
6. A signed statement of the respondent;
7. A floor plan of both levels of the premises;
8. A photograph depicting packed boxes;
9. A copy of the front page of the respondent's residential tenancy agreement with the Head Landlord, Jie Ren.
There were disagreements as to whether all documents had been served. The applicant in particular submitted that I must determine the application on the basis of the documents he had provided to the Tribunal and that the respondent's written material received by the Tribunal on or about 24 March 2017 (including the signed statements of the respondent and Mr Dixon, and the handwritten statement of an electrician, Mr Gill) must be disregarded. I do not accept that submission. The Tribunal's obligation is to afford procedural fairness to both parties. As part of that obligation the Tribunal is required to take such measures as are reasonably practicable to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings: see NCAT Act ss 38(2) and 38(5)(c). Subject to that obligation and the guiding principle - to facilitate the just quick and cheap resolution of the real issues in the proceedings (s 36(1)) - the Tribunal is entitled to determine its own procedure: ss 36(2) and 38(1).
I determined that in order to afford procedural fairness, I would allow each party to present his own case by way of sworn oral evidence (referring to the documents provided to the Tribunal) and that I would allow cross-examination of the oral evidence by the other party. Moreover, where documents such as the electrician's statement and Mr Dixon's statement were referred to by the respondent in his sworn oral evidence, the applicant was afforded an opportunity to ask questions of the respondent and to make submissions to the Tribunal in respect of the evidentiary weight to be given to those statements. I observe also that the substance of what was said in the statements relied upon by the respondent in this application was not inconsistent with the matters put to the Tribunal in the respondent's earlier application (File No RT 16/24568) which was served upon the applicant in or about May 2016.
In making my decision I have had regard to all evidence (written and oral) provided by the parties at today's hearing. In these Reasons for Decision, I may focus on the material which I consider is central to the considerations of this application for orders of the Tribunal; but to the extent that the Reasons may not refer to a specific piece of evidence or singularly deal with a submission, it should not be assumed that I have ignored that evidence or submission.
[3]
THE TRIBUNAL'S JURISDICTION: THE MONETARY LIMIT ISSUE
The Tribunal must not make an order for payment that exceeds the amount prescribed by the Regulation for the purposes of s 187 of the RTA. Clause 23 of the Regulation under the heading 'Monetary limit of jurisdiction of Tribunal: s 187 (4) (a) of Act', provides:
"The amount prescribed for the purposes of section 187 (4) (a) of the Act is:
(a) If the order is with respect to a rental bond, $30,000.00;
(b) In any other case, $15,000.00."
The authors in Anforth Christensen Bentwood Residential Tenancies Law and Practice New South Wales 6th Edition at page 311 write that: "It is not clear how this section is intended to work. Does it mean that, if there is a rental bond held by the Bond Board, claims can be determined up to $30,000, but if there is no bond then claims can only be determined to $15,000?" On this application, the claim advanced by the applicant is for a bond amount and compensation with an aggregate total of at least $19,319.00. In fact, the applicant submitted that a higher amount (up to $30,000.00) could be awarded by the Tribunal because cl 23 of the Regulation must be interpreted so that cl 23(a) sets a global limit of $30,000.00 for any matter involving (among other claims) a bond claim; and that cl 23(b) sets a global limit of $15,000.00 for any matter not involving a bond claim.
I observe, however, that there is an alternative construction of the Regulation which would not permit a Tribunal order for the payment of money (including bond and compensation) in a sum of up to $30,000.00 regardless of the amount of the bond. On that construction in the circumstances of this case, the applicant's claim could not exceed $16,160.00.
The Regulation as to the Tribunal's monetary limit is enlivened for claims exceeding $15,000.00 only when there is a claim 'with respect to a rental bond'. The outcome of such a claim may be that the whole or part only, of a bond amount is paid to a landlord. The Tribunal might also determine that no part of the bond amount is paid to a landlord. While an applicant in a claim with respect to a rental bond may be a tenant (as in this case) or a landlord, it is the landlord (whether as applicant or respondent) who is, in reality, the party seeking compensation in respect of the matters set out in s 166 of the RTA with respect to a rental bond. The rental bond is always a tenant's money subject to any claims for compensation established to the requisite standard of proof (i.e. the balance of probabilities) by the landlord. Therefore, a landlord has to make out a case as to why the whole or any part of the rental bond should be provided to him rather than refunded to the tenant.
In my opinion, having regard to the essential nature of a claim with respect to a rental bond as outlined in the preceding paragraph of these Reasons, the construction of cl 23 of the Regulation which is to be preferred is one which allows an order of the Tribunal requiring a party to pay money consisting of no more than $15,000.00 in compensation plus any further amount determined by the Tribunal on a claim with respect to a rental bond; but provided the aggregate total of the compensation payable ($15,000.00) and the further amount does not exceed $30,000.00.
However, a final determination of the proper construction of the Regulation does not arise in this application in light of my findings of fact and law (set out below) on the applicant's claims for compensation.
I note further that s 187(4) of the RTA refers to the making of an 'order'. Therefore, cl 23 of the Regulation is a constraint on the making of orders rather than a constraint on the Tribunal entertaining a claim, even if the Tribunal may not have power to make an order in the amount of the claim advanced by the applicant: Gartell v Roth [2015] NSWCATAP 182, [22] - [37].
[4]
ISSUES FOR DETERMINATION: CONSIDERATION
The issues arising for determination by the Tribunal are:
1. Whether the tenancy was for a fixed term of four months (i.e. ending on 23 July 2016);
2. Whether the tenancy included the facility of the upstairs bathroom for the applicant's own personal use;
3. Whether the respondent breached the residential tenancy agreement by disturbance of the applicant's quiet enjoyment of the premises or any other interference with the applicant's peace comfort and privacy, while the applicant was a resident of the premises;
4. Whether the applicant was responsible for serious damage to the premises during the period of his tenancy;
5. Whether the circumstances of the applicant's departure from the premises on or about 30 May 2016 amount to wrongful eviction by the respondent;
6. Whether the respondent has established an entitlement to retain the bond amount ($1,160.00) or any part thereof received by him on or about 24 March 2016;
7. Whether and if so in what amounts the applicant has established claims for compensation (comprising economic loss and non-economic loss) by reason of breach of the applicant's quiet enjoyment, any reduction or withdrawal of facility, or in consequence of a wrongful eviction.
I am not satisfied that there was a residential tenancy agreement between the parties for a fixed term of four (4) months. I accept the respondent's evidence that his only conversations with the applicant on or about 24 March 2016 were in respect of giving each other two (2) weeks' notice. To the extent there are differences between the applicant's recollection and the respondent's recollection of material conversations in or about March 2016, I prefer the respondent's evidence. The respondent's evidence is consistent with the contemporaneous documents (i.e. the text messages) which refer to 2 weeks' notice but make no reference to a fixed term.
I am also satisfied that at all material times, there was a Head Agreement between Jie Ren as landlord and the respondent as tenant and that the Head Agreement had become a periodic tenancy following the expiry of the fixed term during 2015. As indicated, the respondent produced a copy of the front page of the Head Agreement at the hearing. Further, in his affidavit sworn 15 July 2016, the applicant conceded that the respondent had told him about 'a contract with the owner' and also that the respondent had said words to this effect: 'the term of that had ended and he (the respondent) had stayed on, paying the rent as usual'. The Tribunal finds it inherently improbable in such circumstances, that the respondent, while having no fixed term with the Head Landlord, offered a fixed term to a sub-tenant.
I find that the residential tenancy agreement between the applicant as sub-tenant and the respondent as head-tenant was a periodic tenancy.
The applicant's sworn evidence was that the parties' agreement made on 24 March 2016 contained a term in or to the effect that the applicant had exclusive use of the upstairs bathroom. The applicant relied upon statements in an advertisement on the Gumtree website for furnished share accommodation in the subject premises. The copy advertisement tendered in the applicant's case was listed with 'Gumtree' on 3 July 2016. It refers to the premises having '3 bathrooms' and the prospective tenant having 'own bathroom'. The applicant's recollection was that the relevant advertisement posted on the Gumtree website on or shortly prior to 24 March 2016 was in or to the same effect.
The applicant also relied upon his conversations with the respondent on or shortly prior to 24 March 2016. In his affidavit sworn 15 July 2016, the applicant observed that the bathroom directly opposite the upstairs bedroom was 'obviously under construction with a number of wall and floor tiles removed and/or broken'. The respondent had called the premises 'his place' leaving the impression that it was he who was arranging a renovation of the bathroom and that the leaking shower would be fixed within a couple of weeks.
The respondent says that the advertisement he put on 'Gumtree' on or shortly prior to 24 March 2016 did not advertise share accommodation at the premises with 'own bathroom'.
The respondent denies any conversation that the leaking shower would be fixed within two weeks and that thereafter the upstairs bathroom (including shower) would be for the applicant's own personal use. The respondent gave sworn evidence that the applicant accepted an occupancy of the premises on an 'as is' basis and that the applicant understood he had to use the common bathroom on the downstairs level when showering. I accept the respondent's evidence. The respondent was in no position to offer the applicant the use of the shower in the upstairs bathroom unless and until the Head Landlord had caused the leaking shower to be fixed. The upstairs bathroom leaked water onto a light in the building's foyer area directly below when the shower was used. Any use of the shower until the leaking issue had been rectified by the Head Landlord was a serious safety issue to all occupants (including the applicant) of the strata building within which the premises were situated. The continued use of the shower in the upstairs bathroom heightened the risk of electrocution and/or fire. The respondent's evidence is also consistent with the matters put by him in his application lodged on 25 May 2016 (File No RT 16/24568) and in the letter requesting an urgent hearing which accompanied the application as well as in the written statement of the electrician, David Gill, dated 28 May 2016.
With respect to the parties' differences as regards the content of the 'Gumtree' advertisement and as regards their material conversations about using the shower in the upstairs bathroom, I prefer the respondent's evidence. For the foregoing reasons, I find that the facility offered by the respondent to the applicant at the premises on 24 March 2016 and during the period of the applicant's occupancy of the premises up to 30 May 2016 did not include the use of his own bathroom.
There is no doubt that during the applicant's occupancy of the premises (particularly during May 2016) there were disagreements between the parties. The disagreements concerned the applicant's use of the shower in the upstairs bathroom. The applicant insisted that it was his right to use the shower. The respondent insisted that the shower must not be used until the leaking issue was fixed by the Head Landlord. The applicant characterises the disagreements as amounting to a disturbance of his quiet enjoyment of the premises or otherwise interference with his peace comfort and privacy. I do not accept that characterisation. I am satisfied that the respondent's position (i.e. that the applicant must use the downstairs bathroom when showering, until the leaking shower in the upstairs bathroom was fixed) was a reasonable position for the respondent to have taken in all the circumstances and especially given the safety considerations and the risk of damage to the building (see electrician's letter of 28 May 2016).
In his oral evidence, subject to questioning by the Tribunal and the other party, the respondent vehemently denied that he disturbed the applicant's quiet enjoyment or otherwise interfered with the applicant's peace, comfort or privacy. I accept the respondent's evidence. It is supported by the written statement of the other occupant of the premises, Mr Dixon, who said that the respondent: 'was always upfront, quiet and respectful'.
A principal element in the applicant's case for compensation (including non-economic loss) is the contention of an 'illegal' eviction. There is also the contention that unnecessary and unreasonable force was used by the respondent on the evening of 30 May 2016 in removing the applicant from the premises.
There were differences in the parties' respective accounts as to the circumstances of the applicant leaving the premises on the evening of 30 May 2016. The respondent said the applicant had agreed with him to move out of the premises but when it came to calculating end of tenancy payments the applicant then changed his mind and refused to move out. The applicant's evidence was that when he returned to the premises at about 6:00 PM he found the front door had been deadlocked from the inside and that he could not open the door with his key. In the applicant's submission, the respondent had acted with contumelious disregard for the Tribunal's process because earlier that day (at the hearing of the respondent's application) the presiding member of the Tribunal had warned the respondent to refrain from any 'lock out' of the applicant from the premises.
However, I am not persuaded that there was any contumely for the Tribunal's process. Both parties agree that the police were called to the premises at about 10:00 PM on 30 May 2016. I am satisfied that there was some discussion with the police present including an offer of the respondent for the applicant to stay one night and then move out the following day. I am further satisfied that when the applicant refused the offer, referring to his (mistaken) belief that he had a fixed term tenancy with the respondent, the police asked the applicant to leave the premises. The evidence establishes that after the police left, the applicant decided to attempt to gain entry to the premises by using a deck chair to raise himself to the window of the upstairs bathroom. At about 11:00 PM, the respondent became aware of the applicant's attempt to enter through the window and there was a physical struggle between the applicant and the respondent. The applicant was not successful in gaining entry through the window. There is evidence that both parties sustained personal injuries during their struggle. The police arrived about 10 minutes later. The applicant admits that the police took the view that he was the one causing the trouble and told him to leave the premises immediately (see paragraph 19 of the applicant's affidavit sworn 15 July 2016).
The evidence does not support any allegation of assault or the use of unnecessary or unreasonable force on the respondent's part. The police took no action other than requiring the applicant to leave the premises on the evening of 30 May 2016. No criminal charges were laid.
I agree with the applicant's submission that the document bearing date 17 May 2016 given by the respondent to the applicant and purporting to terminate the residential tenancy agreement on 14 days' notice was not a Notice of Termination which complied with the RTA. A landlord has to serve a 90 day notice to terminate a periodic agreement where no breach is alleged: s 85 of the RTA.
The applicant also submitted that the respondent was motivated by malice and a determination to remove the applicant from the premises irrespective of the consequences. The applicant argued that the steps which the respondent had taken in May 2016 to terminate the tenancy by his application to the Tribunal (File No RT 16/24568) were vexatious and intended to harass him. I reject that submission. I am satisfied that bringing the proceeding against the applicant and seeking orders for termination and possession was a step reasonably taken by the respondent, because the applicant was continuing to use the leaking shower in the upstairs bathroom. I am further satisfied that the applicant's action in using the leaking shower was in complete disregard of the respondent's direction that the applicant refrain from doing so and also that the applicant's action was causing serious damage to the walls of the premises and the 240 v florescent light on the ceiling of the foyer in the level below. In this regard, I accept the evidence contained in the statement of the electrician dated 28 May 2016.
I am satisfied that the respondent at all material times acted reasonably and in good faith and only withdrew his application to terminate the tenancy because of his genuine (albeit mistaken) belief that the Tribunal did not have the jurisdiction to hear and determine the application for termination of the tenancy under s 90 of the RTA.
[5]
REPAYMENT OF BOND AMOUNT
The respondent alleges that the applicant owes him sums of money for damage to the walls of the premises caused by the applicant using the leaking shower, damage to the roof of the premises caused by the applicant's attempted entry through the bathroom window, rent arrears and storage costs.
The applicant denies any liability and seeks an order under s 175 of the RTA for repayment to him of the rental bond amount of $1,160.00. The evidence establishes that the bond amount was paid to the respondent by the applicant on or about 24 March 2016.
Claims for damages and rent arrears are matters which may be the subject of a claim with respect to a rental bond: s 166 of the RTA. However, as already referred to, it is for the respondent to establish on the balance of probabilities a case as to why the whole or any part of the rental bond should be provided to him rather than refunded to the applicant.
I find that the respondent has not advanced a case for him to retain the whole or any part of the bond amount. The respondent did not give to the Tribunal and the other party any invoices, quotations, rent ledger, condition reports, photographs, or other relevant documents to support his assertions of the applicant's liability for compensation at the end of the tenancy. Indeed the amount of compensation sought is not clear on the evidence.
In the absence of that evidence, the respondent must refund the whole of the bond amount to the applicant.
[6]
Damages for breach of quiet enjoyment - pre - 30 May 2016 ($4,000.00 claimed)
This claim is based on allegations of harassment, threats, aggressive behaviour, invasion of privacy, and damage to the applicant's property (specifically, a mosquito net).
I am not satisfied that the allegations of breach are made out on the evidence. I accept the respondent's evidence and the evidence contained in the written statement of Mr Dixon, the other occupier of the premises at all relevant times. There is no other evidence (e.g. police reports) to substantiate the applicant's assertions. No criminal charges (e.g. assault, or malicious damage to property) were laid against the respondent.
I reject the applicant's claim for compensation in an amount of $4,000.00 or any lesser amount.
[7]
Compensation for reduction in services - shower in upstairs bathroom ($475.00 claimed)
Although this claim is put in terms of compensation for reduction or withdrawal of service or facility at the residential tenancy premises (c.f. s 44(3) of the RTA), it is, in fact, a claim for compensation under s 187 of the RTA as the application was lodged about 10 days after the tenancy ended. Therefore, it is to be characterised as a claim for compensation based upon allegations of landlord breaches of the covenant of quiet enjoyment (see also s 50 of the RTA).
For the reasons referred to, I do not find that the facility offered by the respondent to the applicant at the premises up to 30 May 2016 included the use of his own bathroom.
The applicant's claim for compensation under this head of damages in the amount of $475.00 is therefore not established on the evidence.
[8]
Compensation for reduction in services - internet services for the period from 19 May 2016 to 30 May 2016 ($60.00 claimed)
A landlord must not interfere with the supply of telecommunication services to residential premises unless the interference is necessary to avoid danger to any person or to enable maintenance or repairs to be carried out: s 52(2) of the RTA.
A landlord must also provide and maintain the residential premises in a reasonable state of repair, having regard to the age of, rent payable for and prospective life of the premises: s 63(1) of the RTA. However, s 63 has to be read in conjunction with s 65 of the RTA which imposes further limits on the landlord's duty of repair. The landlord has to be on notice of the problem, the repair must be necessary and if so the landlord is required to repair within a reasonable time (that is, the landlord must act with reasonable diligence).
The applicant's allegation was that the respondent deliberately interfered with the 'wifi' internet router in the living room. From about 19 May 2016 the applicant could not use the 'wifi' at the premises because the password had been changed.
I am not satisfied there is sufficient evidence to support the allegations of deliberate interference by the respondent or indeed any failure on the respondent's part to address issues of maintenance of the internet connection in a timely manner. The respondent's sworn evidence was that after the applicant had complained to him about 'wifi' connections in the premises he acted with reasonable diligence by arranging for the telecommunication service provider, Telstra, to supply a new router. I accept the respondent's evidence.
I decline to make any order for compensation in the amount of $66.00 or any lesser amount in respect of the applicant's claim concerning internet services at the premises during the period from 19 May 2016 and 30 May 2016.
[9]
Compensation for loss of bargain damages ($400.00 claimed)
This a claim for compensation under s 187(1)(d) of the RTA based upon the applicant's allegation of the loss of a valuable contractual right; i.e. a fixed term tenancy with an 'unexpired' period of about 8 weeks.
The evidentiary foundation for the claim is not established. For reasons already referred to, I do not find a residential tenancy agreement between the applicant as sub-tenant and the respondent as head-tenant for a fixed term of four (4) months.
I disallow the claim for compensation under this head of damages in the amount of $400.00.
[10]
Compensation for property damaged or taken - food & power adaptor ($129.00 claimed); mug & cutlery ($100.00 claimed)
I am not satisfied on the evidence that there is a causal connection between any loss of, and damage to, the applicant's personal property, on the one hand, and any act or omission by the respondent, on the other hand.
There is no evidence of an inventory of the applicant's personal property at the commencement of his period of occupation of the premises.
As referred to above, I do not accept the applicant's case that the respondent acted with malice in the circumstances of the applicant's departure from the premises on the evening of 30 May 2016.
I accept the respondent's sworn evidence that with the assistance of his mother on 31 May 2016 he purchased packing boxes and packaging equipment from Kennards Storage; that the respondent and his mother carefully packed the applicant's belongings and transported them to a storage facility in Ultimo; and that these arrangements were notified to the applicant. I am satisfied that the applicant was afforded an opportunity to collect his belongings and to mitigate any loss of or damage to personal property which he may have suffered in departing the premises on or about 30 May 2016.
[11]
Compensation for 'illegal' eviction - non-economic loss, general damages for 'lockout' and aggravated damages ($12,000.00 claimed or higher); moving costs ($80.00 claimed); temporary accommodation & food ($345.00 claimed)
The Civil Liability Act 2002 NSW ("CLA") applies to claims of compensation for non-economic loss in regard to personal injury including grief, distress, disappointment, pain and suffering. An award of non-economic loss for personal injury cannot be made unless an applicant meets the thresholds in the CLA (i.e. 15% of a most extreme case - see s 16). I find the evidence (which included the medical certificate of Dr Ali Raza dated 20 June 2016) does not establish that the applicant has met such threshold. In fact, the applicant conceded this during his oral submissions but emphasised another submission; namely, that the operation of the CLA was excluded because the applicant's claim was made in circumstances where it was the respondent's intention to cause injury or death (see s 3B(1)(a) of the CLA). However, for the reasons given, the evidence in this case does not support a finding that the respondent acted with deliberate intent, or even recklessly, to cause injury to the applicant.
Non-economic loss damages for nuisance, inconvenience, discomfort and loss of enjoyment of residential tenancy premises are not subject to the CLA and non-economic loss damages for those matters can be awarded: see, for example, Roberts v NSW Aboriginal Housing Office [2017] NSWCATAP 9, [77] - [96], where the Appeal Panel confirmed that there is a distinction between claims for stress, anxiety, sickness and embarrassment (limited by s 16 of the CLA) and a claim for loss of quiet enjoyment.
However, as referred to, I am not satisfied on the evidence that there was any disturbance of the applicant's quiet enjoyment of the premises up to the applicant leaving the premises on 30 May 2016. The applicant urged me to make an award of general damages for 'illegal' eviction having regard to an earlier decision of the Consumer Trader and Tenancy Tribunal, a predecessor to this Tribunal. In Sharon v Diamond Bay Construction Pty Ltd [2003] NSWCTTT 682 (17 September 2003) the Tribunal found that the applicant and her two year old son had been unlawfully evicted from residential tenancy premises and that she was entitled to non-economic loss compensation in the amount of $6,000.00. The member found that:
"(the landlord) was in breach of the Residential Tenancies Act 1987. It acted without lawful authority. It completely ignored those provisions of the Act governing the termination of residential tenancy agreements. It failed to take even the most basic step of issuing a notice of termination to Ms Sharon."
In my view the facts of Sharon's case are distinguishable from the facts of this case. I accept that the applicant's eviction from the premises on 30 May 2016 was done without the respondent having served a valid Notice under the RTA. It is also the fact that no Tribunal orders for termination of the parties' residential tenancy agreement were made, whether on the grounds contained in s 90 of the RTA (as asked in the respondent's application for File No RT 16/24568), or on any other grounds which do not require the giving of a Notice of Termination. Nonetheless, I find it is the case in the events which occurred, that the respondent withdrew his application in the genuine belief the Tribunal did not have jurisdiction to hear and determine his application. Unlike the circumstances of Sharon's case, the applicant did not act with blatant disregard for the requirements of the applicable residential tenancies legislation. Nor can it be said that the respondent acted without advertence to the legal process necessary for an application to the Tribunal to terminate a residential tenancy.
I have a discretion to award compensation under s 187(1)(d) for breach of quiet enjoyment. In the exercise of that discretion in the particular circumstances of this case, I decline to award any general damages for non-economic loss (whether in the amount claimed of $12,000.00 or any lesser amount) or any damages for temporary accommodation and food or moving costs.
[12]
COSTS
The applicant sought recovery of his Tribunal filing fees in the amount of $564.00. This is to be characterised as a claim for the costs of and incidental to the various proceedings underlying the parties' disputes.
I am not satisfied that there are any special circumstances which would warrant a departure from the general rule in respect of residential tenancy claims that each party bears their own costs of applications to the Tribunal: see s 60 of the NCAT Act.
[13]
CONCLUSION & ORDERS
The applicant has established an entitlement to a refund of the bond amount. Accordingly, an order is made under s 175 of the RTA.
The balance of the applicant's application for compensation under s 187 of the RTA must be dismissed.
DG Charles
Senior Member
Civil and Administrative Tribunal of NSW
25 May 2017
[14]
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
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Decision last updated: 05 July 2017