El-Saeidy v NSW Land & Housing Corporation [2012] NSWSC 876 | Case summary

Supreme Court of NSW|2012-08-06

Judgment 1HER HONOUR: In this matter the plaintiff is Fawzi El-Saeidy and the defendant is NSW Land & Housing Corporation (Housing). Both parties seek to vary orders made by this Court. On 27, 28 and 29 June 2011, this matter came before me for hearing. On 9 August 2012, I delivered the substantive judgment in which I made findings about the presence of asbestos at premises in Villawood where the plaintiff and his family are residing. On 22 September 2011, I made an order that: "1.The defendant is to carry out the following work on the premises the subject of a residential tenancy agreement between the defendant as lessor and the plaintiff as lessee, as follows: (a)Remove and replace all the asbestos cement wall linings and all asbestos cement sheets and linings of ceilings in the bathroom, kitchen and laundry; and remove and replace all the asbestos linings on the eaves and in the electricity meter box." 2On 12 December 2011, I made the following orders: "BY CONSENT THE COURT ORDERS THAT: 1.Defendant is to relocate the plaintiff and his family to an alternative 3-bedroom property for the duration of the works to XX XXXX Street, Villawood, subject to Mr El-Saeidy's inspection. 2.Defendant is to pay the costs of the plaintiff's removal into and out of the premises (including packing if necessary). 3.The defendant guarantees to relocate Mr El-Saeidy to XX XXXX Street, Villawood after the completion of the works within 7 days on the same lease terms. THE COURT ORDERS (NOT BY CONSENT) THAT: 4.The defendant is permitted to use its own contractors to undertake the work. 5.The plaintiff's possessions are to be relocated for the duration of the works." 3There are two notices of motion before the Court. By further amended notice of motion filed 26 July 2012, the plaintiff now seeks to vary the orders made on 12 December 2011 as follows: "1That in Order 1 made on the 12 December 2011 the following is added: a)In the current circumstances where the Defendant has not been able to supply suitable asbestos free accommodation to the Plaintiff, that the Defendant temporarily relocate the Plaintiff and his family to room no 20 in XXXXX Motel located at XX XXXX XXXX Bass Hill in the State of New South Wales 2197 within 7 days of the date of these orders. 2That in Order 5 made on the 12 December 2011 the following is added: Where the Plaintiff is relocated to the motel above in 1(a), the Plaintiff's possessions are to be kept in the three bedrooms in XX XXXX Street, Villawood NSW 2163 (the property) and that these three bedrooms are to be sealed off in accordance with the occupation, health and safety code of practice. 3The Defendant to commence carrying out the works on the property within 14 days from the day that the Plaintiff and his family are relocated to a suitable temporary accommodation. 4The Defendant is to complete the works on the property within 70 days from the day that the Plaintiff and his family are relocated to a suitable temporary accommodation. a)The Plaintiff allows additional 4 weeks as fair and reasonable time in addition to the Defendant's estimate of 6 weeks for the completion of the works to compensate for any delay in the works to be carried out caused by inclement weather. 5That during the period of the works being carried out that Mr Mahen De Silva have access on three separate occasions to carry out any works needed for the issuing of the Clearance Certificate for the property, before the Plaintiff and his family are allowed to return to the property known as XX XXXX Street, Villawood NSW 2163, as follows: a.3 hours access allowed, after all asbestos materials and sheetings are removed from inside the property including eaves and electricity meter box and before the new material is put in as replacement. b.3 hours access allowed, after asbestos material and all top soils from both front and back yards are removed and before new (clean) top soils are put in as replacement. c.2 hours access allowed, after new (clean) top soils are put in the front yard and back yard of the property..." 4By notice of motion filed 4 July 2012 (amended orally in court; see T5-6), Housing now seeks to vary my orders dated 12 December 2012. Housing seeks that: 1Order 1 of the Consent Orders made on 12 December 2011 is varied to remove the words "subject to Mr El-Saeidy's inspection". 2A declaration that the premises located at XX XXXX Avenue, Bankstown are a suitable "alternative 3-bedroom property", in compliance with order 1 of the Consent Orders made on 12 December 2011. 3The plaintiff and his family are to temporarily relocate to XX XXXX Avenue, Bankstown within 14 days, to enable the defendant to commence works on XX XXXX Street, Villawood as orders by this Court on 12 December 2011. 3AIn the alternative the plaintiff and his family are to temporarily relocate to XX/6 XXXX Street, Villawood within 14 days, to enable the defendant to commence works on XX XXXX Street, Villawood as orders by this Court on 12 December 2011. 4The plaintiff is to pay the defendant's costs of an incidental to this Notice of Motion. 5The defendant is permitted to set off the costs in (4) above against the costs orders made in favour of the plaintiff against the defendant in these proceedings, and/or against the award of damages made in favour of the plaintiff against the defendant on 9 August 2011..." (emphasis in original) 5Mr El-Saeidy relied on his affidavit dated 28 May 2012 and four affidavits of his solicitor Kirco Jakimoski dated 21 May 2012, 28 May 2012, 31 May 2012 and 25 July 2012. Housing relied on the affidavit of its solicitor Leighton James Hawkes dated 3 and 24 July 2012. 6The first issue that I need to address is whether I have power to hear the issues raised in these motions. 7Rule 36.11 of the Uniform Civil Procedure Rules 2005 (UCPR) relevantly reads: 36.11Entry of judgments and orders (1)Any judgment or order of the court is to be entered. (2)Unless the court orders otherwise, a judgment or order is taken to be entered when it is recorded in the court's computerised court record system..." (emphasis added) 8The judgment in this matter was entered on 12 December 2011. As judgment has been entered I may be functus officio. 9A helpful "common sense" guide in determining whether a case is finalised after judgment can be found in Burrell v The Queen (2008) 238 CLR 218 where Gummow ACJ, Hayne, Heydon, Crennan and Kiefel JJ discuss when an order had been "perfected". Their Honours stated at 224: "Whether a court may reopen a proceeding and reconsider the order that has been pronounced is often described as hinging about whether the order has been "perfected". This use of terminology must not be seen as giving form and procedure precedence over substance and principle. The questions that arise in this matter must depend for their answer not upon what forms and solemnities have been observed but upon how effect is to be given to the principle of finality. In particular, what is to mark the point at which a court concludes its consideration of a controversy? (emphasis added) 10In Landsal v REI Building Society (1993) 41 FCR 421 the Full Court of the Federal Court stated at 427: "This court's implied power to regulate its own procedures in the administration of justice in a particular regard is not confined to a situation in which there is no statute or rule of court that could possibly apply to what is to be done in that regard. The true rule is that a court may exercise its inherent or implied powers in a particular case, even in respect of matters that are regulated by a provision of a statute or rules of court, so long as it can do so without contravening any such provision: see Taylor v The Attorney-General (1975) 2 NZLR 675 at 680, 687-8 and 692-3. Cf Wentworth v NSW Bar Assn (1992) 66 ALJR 360 at 364." (emphasis added) 11On the topic of a Court's inherent jurisdiction, in McGuirk v University of New South Wales [2010] NSWCA 104, Sackville AJA (with whom Young JA agreed) appeared to approve Landsal v REI Building Society. His Honour said at [187] that: "There is authority for the proposition that the court's inherent jurisdiction is not displaced by rules of court, provided the exercise of the inherent jurisdiction does not contravene the requirements of the rules of court: Lansdale Pty Ltd (in liq) v REI Building Society [1993] FCA 121; 41 FCR 421, at 476, per curiam. But where the rules of court contain provisions such as UCPR, r 2.1, which confer broad powers on the court to give directions or make orders for the conduct of proceedings, there is no good reason in policy or practice to extend the inherent jurisdiction of the court beyond its established scope. To put the matter another way, it is not necessary to extend the inherent jurisdiction of the court beyond its established parameters where the existing powers of the court are adequate to ensure that the interests of justice are served."

Issues that I have no power to determine 12In my view some of the orders sought in the motions have already been adjudicated upon and form part of the judgment. Hence, I do not have the power to make those further orders. Paragraph 1 of the defendant's notice of motion falls into this category. I cannot delete the words "subject to Mr El-Saeidy's inspection" as this order has been entered. 13The orders sought in the plaintiff's further amended notice of motion at paragraphs 2, 3 and 5 also fall into this category. They too have been adjudicated upon and form part of the judgment. 14The order sought in paragraph 4 of the plaintiff's motion seeks to stipulate a time by which the defendant has to complete the works on the property. On 12 December 2011, I stated, "it's up to Housing how they do it [the repairs to the property] and they have to use their own contractors" (at T 5.40). At the hearing on 12 December 2011, Mr El-Saeidy had submitted that he should have his choice of contractors to do the work as they could do it in two weeks, whereas Housing's estimate was eight weeks. Even if I have the power to deal with this issue, I would not accede to Mr El-Saeidy's request, as it is up to Housing to carry out the repairs. It is not up to Mr El-Saeidy to stipulate how and in what time frame the work is to be carried out. 15So far as the orders sought in paragraph 5 of Mr El-Saeidy's motion is concerned, Mr El-Saeidy is attempting to dictate a regime of inspections to be conducted by Mr De Silva. On 12 December 2011, I also commented that it was up to Housing to do the work properly and that "Mr El-Saeidy can move back [into] the premises once the work is completed and it's certified safe go back (T 5.28-29). I did say that if Mr El-Saeidy wanted Mr De Silva to look at it (after Housing issues the certificate) "he can but he can pay for it" (T6). I decline to make any further orders on this topic other to say that the regime sought by Mr El-Saeidy is unworkable.

The main issue in dispute that I can decide 16The main dispute that has arisen is an issue as to the suitability of the alternative accommodation offered by Housing. It is my view that I have power to determine this issue because specific alternate accommodation was not specified nor contemplated in my judgment. The making of an order as to suitable alternate accommodation is more in the nature of determining mechanics by which the orders already made can be brought to fruition. 17Since the last hearing of this matter on 12 December 2011, Housing has made the following offers of temporary accommodation to Mr El-Saeidy: (a)XX XXXXX Street, Villawood (the Villawood street property), a 3-bedroom house; (b)XX XXXXX Avenue, Villawood (the Villawood avenue property), a monocrete 3-bedroom house; (c)XX XXXXX, Chester Hill (the Chester Hill property), a 3-bedroom brick cottage; (d)XX XXXX Avenue, Bankstown, a 3-bedroom villa; (e)XX/6 XXXX Street, Villawood, a 3 bedroom, ground floor unit (the Villawood unit), which became available the day before the latest hearing before me. 18Mr El-Saeidy has refused to accept Housing's offers of temporary accommodation in each of these properties as he says that they all contain asbestos. He has sought that he and his family reside in two rooms in a motel in Bass Hill. His family comprises of himself, his wife and five children ranging in age from 5 months to 8 years. Housing submitted that three of the properties are suitable temporary accommodation. Mr El Saeidy asserts that two motel rooms in Bass Hill are suitable temporary accommodation for him and his family while the repair works are carried out. I shall return to this topic shortly. 19Mr El-Saeidy has inspected each property and rejected the first four properties as, according to him, they contained asbestos. For each property offered, Mr El-Saeidy went through the same process, which I have set out in some detail below, in relation to the Villawood Street property. 20So far as the Villawood unit is concerned, it only became available the day prior to this hearing, so that Mr El-Saeidy has not had the opportunity to inspect it.

(1)The Villawood Street property, a 3 bedroom free-standing house 21On 16 February 2012 the plaintiff, together with his solicitor, attended the Villawood Street property to conduct inspection of the property. Mr El Saeidy conducted an internal and external inspection of the property and also took photographs with his digital camera. Mr El-Saeidy inspected the interior by tapping on the walls in each of the rooms separately and carefully listening to the sound. Mr El-Saeidy remarked: "Definitely these sheeting material is asbestos because it has the same sound as that of the asbestos sheeting in my place at XX XXXXX, Villawood." The outside walls were inspected by Mr El-Saeidy by tapping on the walls with his fingers and listened to the sound it made. He stated that, "these are also asbestos materials". 22Mr El-Saeidy saw that the property was freshly painted and that almost every wall inside the property was patched up where broken and painted over to conceal the damage to the wall asbestos sheeting. He also noticed a huge crack on the wall asbestos sheeting in the kitchen above the sink, which looked like a decompressed crack, and it was only fixed by painting over it. 23At the front of the property, on the front exterior wall, he observed that there were a number of holes visible and uncovered underneath the front window. He says that there were also cracks and damages to the exterior walls asbestos sheeting. According to Mr El-Saeidy, in the backyard of the property it looked like the topsoil had been recently overturned. There was no grass and was moist. He saw numerous fragments of sheeting scattered around the backyard. He pointed out some and stated, "these are asbestos material". He is also of the view that there is asbestos material on the inside the electricity box. He took some photographs, which are in evidence. 24No fragments from this property were forwarded by Mr El-Saeidy to Mr De Silva for analysis, so it is Mr El-Saeidy's view (not that of an expert) that the property contained asbestos. However, no evidence has been adduced by Housing as to the presence or otherwise of asbestos at this property. Mr El-Saeidy rejected this property as being suitable alternative accommodation. Housing maintains that this property is suitable for Mr El Saeidy and his family.

(2)The Villawood Avenue property, a monocrete 3 bedroom house 25On 23 February 2012, Mr El-Saeidy and his family inspected the Villawood Avenue property. He took photographs, as with the Villawood Street property, Mr El-Saeidy conducted an internal and external inspection. He adopted the same inspection technique to the interior of the property by tapping on the walls and ceiling in each of the rooms. He listened to the sound and compared it with the sound produced at his current premises. Mr El-Saeidy concluded that the inside of the house was full of asbestos. 26During his inspection of the front and back yards Mr El-Saeidy noticed broken fragments scattered around the property, particularly in the back yard. He says that he saw asbestos sheetings partly buried in the topsoil. 27This time Mr El-Saeidy collected six samples, four from the back yard and two from the front yard, but none from the interior of the property. He then hand delivered the samples to Mr De Silva for analysis. The result of the samples came back as being positive for the presence of asbestos (Report, 27/2/2012). 28Based upon these findings of asbestos contamination Mr El-Saeidy also declined the property as suitable temporary accommodation. No evidence has been adduced by Housing to dispute the presence of asbestos at that property. Housing no longer asserts that this property is suitable alternate accommodation.

(3)The Chester Hill property, a 3 bedroom brick cottage 29On 26 March 2012, Mr El-Saeidy, together with his solicitor Mr Jakimoski, inspected the Chester Hill property. Mr Jakimoski took photographs with Mr El-Saeidy's digital camera while Mr El-Saeidy collected samples from the backyard. 30Mr El-Saeidy once again conducted his inspection by tapping on the walls and ceilings of each of the room, listening to the sound and comparing it with the sound produced at his current premises. Mr El-Saeidy concluded that the ceilings of all rooms in the property are definitely asbestos sheeting. He observed that there were a number of holes drilled into the ceiling of the main bedroom in the vicinity of the main light fittings, which exposed the asbestos material. He says that these holes were visibly releasing free asbestos fibres inside the main bedroom, as there were huge amounts of asbestos dust in these holes. The holes caused cracks and breakages to the asbestos sheetings. He says that it was a similar situation in all other rooms of the house, although there was asbestos sheeting in the lounge room and that ceiling had a 64 cm crack which was covered with paint. Mr El-Saeidy was also of the view that the eaves and electricity box of the property are of asbestos sheeting. 31Mr El-Saeidy conducted an inspection of the front and back yards. He noticed broken asbestos fragments scattered around the property, in particular in the back yard. He says that he saw sheetings of asbestos partly buried in the topsoil of the back yard of the property. He collected four samples from the back yard and hand delivered them to Mr De Silva. The reports all came back positive for asbestos (Report, 30/3/2012). 32Based on those findings Mr El-Saeidy did not accept the property as temporary accommodation because of the asbestos contamination. Once again, Housing has produced no evidence to the contrary in relation to the asbestos contamination. Housing no longer maintains that this property is suitable alternate accommodation.

(4)The Bankstown property, a 3 bedroom villa 33On 28 June 2012, Mr El-Saeidy in the company of his solicitor inspected the above property. It is a three bedroom villa which has been head leased by Housing from the private rental market in order to offer it to Mr El-Saeidy and his family. The Bankstown property shares the front and backyards with an adjoining villa. Each villa has its own clothesline. There are two photographs of the premises (Ex 1). 34Bankstown Council records confirm that the Development Application in respect to the construction of the Bankstown property was approved in 1988 and construction of the property completed in 1989. Housing submitted that as the use of asbestos in fibro products in New South Wales was discontinued prior to 1987 it is unlikely that the building contains asbestos material. From this, I conclude that the interior of the villa does not contain asbestos. Mr El-Saeidy complains that Housing has not provided him with the Development Application together with the plans submitted to Bankstown Local Council, which bears their stamp, Construction Certificate and Final Occupational Certificate. 35When Mr El-Saeidy inspected the property he says that he spotted loose pieces of material in the back yard just metres away from the back door, which leads directly to the kitchen. Mr El-Saeidy says that he saw crushed and broken pieces of asbestos material on the surface of the topsoil some were partly buried. Mr El-Saeidy and his solicitor took photos of the asbestos materials that were found in the front and back yards. He inspected the eaves of the property by tapping and comparing the sound produced at his current premises. He took photographs of the eaves, exposed and deteriorated asbestos sheeting above the main door of the property. He collected three samples of the material from the front and back yards and delivered them to Mr De Silva for analysis. They all returned positive for asbestos (Report, 29/6/2012). 36Mr El-Saeidy says that he will not accept the property as temporary accommodation because of the asbestos contamination, the lack of fencing and the small size of the front and back yards. He says that it is not safe for his children to play and walk around the back yard and they would be inhaling and exposing themselves to asbestos. 37Housing has arranged for its maintenance contractor, Transfield Services, to remove all of the "loose pieces of material" referred to by Mr El-Saeidy from the external yard area of the Bankstown property. Housing has arranged for a gate to be built across the entrance of the Bankstown property, separating it from the rear yard area of the adjoining villa. 38In the substantive hearing, both experts Mr De Silva and Mr Ryder agreed that where there is no damage to the asbestos material, it does not pose any safety risk and where there is slight damage, it can be fixed and maintained (El-Saiedy v New South Wales Land & Housing Corporation [2011] NSWSC 820 at [22]). So far as the property the subject of the substantive proceedings is concerned, Housing agreed to evacuate, remove and replace all the topsoil in the front and back yards. That is what Mr El-Saeidy is insisting on being carried out at these temporary alternate premises. It is also his view that the asbestos in the yard of the adjoining property also poses a risk to him and his children. 39Housing says that the Bankstown property meets the criteria requested by Mr El-Saeidy as it has sufficient bedrooms for his family, is a single-level freestanding property located in the Bankstown area, and once the gate is added, it will also be fully enclosed.

(5)The Villawood unit, 3 bedroom ground floor unit 40The property is a ground floor three-bedroom unit. It has one common wall, being the entry to the unit block as shown in the photographs in Ex 2. There are two units directly above the property. Hence, the ceiling of the unit is common to the unit above it. There are three stairs up to the entry of the unit. The unit contains an internal kitchen and bathroom and laundry. There are clotheslines and a fenced outside area at the rear of the block where the children could play. As previously stated, as this unit only became available the day before this hearing Mr El-Saeidy has not had the opportunity to inspect these premises and he should be given the opportunity to do so before I make an order. 41Even so, Mr El-Saeidy does not view this property as being suitable due to the common wall and the shared ceiling. He says that he cannot reside in a unit or townhouse due to his medical condition. I shall refer to this topic shortly.

(6)The Bass Hill motel rooms 42Mr El-Saeidy says that due to his medical needs, he seeks temporary accommodation for him and his family in a motel at Bass Hill (the Motel). 43On 22 May 2012, he visited the Motel and asked if they had a room that he and his family could rent for about six to eight weeks. He required accommodation for seven people (two adults and five children) and was looking for a quiet detached room. Mr El-Saeidy was told that Room 20 was for families and that it was at the rear of the building and was detached from the other buildings and was quiet. 44Mr El-Saeidy inspected the room and took photos to show his family. The room comprises of a single bed, a double bed, and a queen bed and has an ensuite consisting of a shower, washbasin and a toilet. It is situated approximately 70 metres from the street but the cars park outside each unit. Room 20 has a shared wall with Room 19 and a shared wall with Room 21. Hence, Room 20 has a common wall on either side. 45Housing submitted that this accommodation is not suitable because it is a single room with a bathroom but with no separate bedroom and is far too small to accommodate the plaintiff, his wife and their five young children, the youngest of whom is a baby aged less than 12 months. The owner of the Motel has confirmed that Room 20 has a maximum occupancy of five persons. Housing says that to force a family of seven to reside in a small motel room would be inappropriate and a breach of New South Wales health and safety law and fire regulations. 46In response Mr El-Saeidy now seeks that Housing relocate his family to two separate rooms at the Motel, being numbers 20 and 21. Housing says that the hiring of two motel rooms instead of one would remain physically unsuitable, as they will still have shared walls and only shared facilities such as kitchen and laundry facilities. Also there would be no private enclosed area for the children to play outside. The reduced cost of a single room at the Motel is $150 per night ($180 is the standard rate). At that rate, it would costs Housing $300 per night to rent two rooms. Over the course of six weeks that Mr El-Saeidy and his family would require temporary accommodation, it would cost Housing $12,600. Housing says that this sum is unreasonable. Housing has leased the Bankstown property at a cost of $450 per week, ie $2,700 for the six-week period.

Mr El-Saeidy's medical condition 47On 9 August 2011, I handed down judgment in El-Saiedy v New South Wales Land & Housing Corporation. At [8] I set out Mr El-Saeidy's medical condition: "8...The plaintiff is currently on a disability pension due to his medical condition. He suffers from a range of conditions including multiple sclerosis, chronic idiopathic neutropenia, which requires three injections per week for life and has side effects such as intermittent fever. He also suffers from liver active fibrosis, chronic lower back pain due to discopathy at L5/S1, severe tinnitus and severe anxiety disorder due to home conditions that are exacerbated by asbestos. His multiple sclerosis had not deteriorated since 1999. (See Report of Dr Alameddin GP dated 23 April 2008)." 48He also has problems with specific immune defects, has mitral valve incompetence and treated hepatitis C. The idiopathic predisposes him to serious fungal and bacterial infections (Report, Dr M Nicolls, Consultant Haematologist, 5/1/11) (Ex A). 49Dr A M Crittenden, a consultant audiologist reported (3/3/11) that Mr El-Saeidy has hearing aids for a moderate degree of hearing loss. He also suffers from severe chronic tinnitus accompanied by the condition "hyperacusis". These conditions are intractable and longstanding and require careful management by Mr El-Saeidy, particularly in regard to the avoidance of exposure to even moderate levels of noise. Dr Crittenden is of the opinion that it is essential that Mr El-Saeidy be provided with a detached single level cottage style of house in a quiet location to help him cope with daily living and also to reduce his tinnitus and hyperacusis distress (Ex A). 50According to general practitioner Dr Aladdin Matter (Report, 10/8/09), Mr El-Saeidy is not fit to climb more than five-six stairs one a regular basis because of his episodic weakness due to Multiple Sclerosis and idiopathic neutropenia (also Ex A). 51Mr El-Saeidy had indicated in the substantive proceedings that he needed to be close to public transport and reside in the Villawood area. 52On 22 May 2012, Mr El-Saeidy's solicitor wrote to Housing solicitors stating at [5] and [6]: "5.Our client never stated that he can live in a unit or a townhouse. To the contrary he requires and requested a free standing single-level cottage style house due to his medical conditions and needs therefore we are instructed to ask you to stop distorting the facts and the medical evidence regarding any suitable temporary accommodation. Our client will not accept any temporary accommodation in a unit or a townhouse because of his medical condition and needs. ... 6.... Our client will only accept single-level cottage style of properties that are offered to him as a suitable temporary accommodation for the duration of works at XXXX Street, Villawood." (Mr El-Saeidy's solicitor's emphasis) 53While it was perhaps unwise for Housing to offer Mr El-Saeidy properties that contained asbestos in the back and front yards, the difficulty that has arisen is that Housing does not have any accommodation available that would satisfy all of Mr El-Saeidy's requirements. Housing has even resorted to renting private premises in an attempt to meet Mr El-Saeidy's needs but it has a problem, as there is asbestos in the front and back yards. I accept that the Bankstown premises has some asbestos pieces in the front and backyards and along the base of the wooden fence, but no asbestos inside the premises. Housing will remove all "loose pieces of material". This is a better living option than his current premises. 54Housing drew this court's attention to its "Matching and Offering a Property to a Client Policy" (as at 2 July 2012). The policy states that its aim is "to promote a successful and sustainable tenancy when matching a client to a social housing property" (at [1]). However, the policy makes it clear that Housing is limited by the "available housing stock". Housing can only make "best use" of that housing stock, and must seek to balance the needs of all of its clients, including Mr El-Saeidy and his family, with the costs to the housing provider of providing assistance. 55Housing's policy provides that a social housing provider may remove a client's application from the Housing's Register if the client rejects two reasonable offers of social housing. Housing says it has now made three reasonable offers to Mr El-Saeidy. 56It is in Mr El-Saeidy's family's best interest to be relocated to alternate temporary premises as soon as possible. It is unsatisfactory that the plaintiff and his family have continued to reside at the current premises since my judgment delivered on 12 December 2011, as this property contains asbestos in the kitchen, bathroom, laundry, the eaves and the electricity box located on the outside of the house and the front and backyards. My main concern is for the five young children residing in the current premises at Villawood. In my judgment of 9 August 2011, I stated at [67]: "... With [then] four young children in the premises the children may hit the walls, resulting in the release of asbestos fibres into the air. If any of the four children touch the asbestos walls and then put their hands into their mouth, there is a risk of harm through ingestion of the fibres." 57It is not possible for Housing to meet all of Mr El-Saeidy's needs and it is his needs, together with those of his family, that have to be considered. The solution for temporary housing will not be satisfactory from Mr El-Saeidy's point of view. Nevertheless, it is imperative that some arrangement is made for temporary accommodation for Mr El-Saeidy and his family. 58Due to Mr El-Saeidy's concerns about asbestos, two properties are left for consideration (although I do not rule out the Bankstown property should the alternatives be found to contain asbestos). They are the Bass Hill motel rooms and the Villawood unit. Currently, it is not known if either the Villawood unit or the Bass Hill Motel rooms contain asbestos. In my view the Villawood unit is the better alternative, as the family can be housed together. It may cause some inconvenience to Mr El-Saeidy because of a common ceiling and entry, but it is better suited to his family's needs. The accommodation is only for a period of six to eight weeks. Two motel rooms would require an adult in each room with the children. The motel rooms share common walls. Those rooms do not have self-contained kitchen and laundry facilities. These amenities are available but they are shared ones. It is not reasonable for Housing to be obliged to pay $12,600 for six weeks (and possibility more if the work takes longer than six weeks) to accommodate Mr El-Saeidy and his family.

Costs 59Costs are discretionary. Housing has sought an order that Mr El-Saeidy pay its costs of, and incidental to, its motion and that it be permitted to set off the costs order made in favour of Mr El-Saeidy against it in these proceedings and/or against the award of damages made in favour of Mr El-Saeidy on 9 August 2011. However, Housing offered some unsuitable properties to Mr El-Saeidy. Mr El-Saeidy has sought many orders in his motion that have not been granted. In these circumstances, the appropriate order for costs is that each party pay his/its own costs. 60I propose to make the following orders, subject to submissions as to an appropriate time for Mr El-Saeidy to inspect the Villawood unit, and as to an appropriate date for the matter to be brought back before me.

The orders I propose to make are: (1)The plaintiff and his family are to be temporarily relocated to the Villawood unit, subject to Mr El-Saeidy's inspection for the presence of asbestos. (2)The plaintiff is to inspect the property within a time period to be agreed upon. (3)Each party is to pay his/its own costs. (4)The matter is listed for mention before me on date to be fixed. I certify that this and the 21 preceding pages are a true copy of the reasons for judgment herein of The Honourable Associate Justice Harrison. Dated: Monday, 6 August 2012 Associate

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: 09 August 2012

El-Saeidy v NSW Land & Housing Corporation

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Judgment (13 paragraphs)

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