Evans v Charlesworth

NCAT Consumer and Commercial|2023-02-02

Parties

The Applicant was the tenant of residential premises described as X/XX MacLean Street Nowra ("the premises"). The Applicant shall hereinafter be described as "the Tenant"). At the hearing the Tenant was represented by Jackson Cocks, a Tenant's Advocate from the Illawarra Legal Centre.
The Respondents are the owners of the premises. The Respondents shall hereinafter be described as "the Landlords"). At the hearing the Landlords were represented by Nathanael Charlesworth.

The Application

In an application filed in the Tribunal on 21 November 2022, the Tenant sought orders that the Landlord not interfere with the Tenant's quiet enjoyment and reasonable peace, comfort and privacy in using the residential premises; not interfere with the supply of any utility service; and not enter the residential premises without giving proper notice and compensation.
The Tenant alleged the Landlords had breached sections 50 and 61(1) of the Residential Tenancies Act 2010 ("the Act").
The Landlords disputed the Tenant's claims and denied any breaches of the Act.

Procedural Directions

Both parties filed and served documents upon which they intended to rely in accordance with procedural directions made by the Tribunal. The documents submitted by the parties were tendered and marked as exhibits in the proceedings.
Both parties were invited to make final written submissions at the end of the hearing on 2 February 2023. Submissions were received from both parties and have been considered by the Tribunal.

Amended Application

The Tenant amended the application on or about 23 December 2022 to request an order for payment of $14,850.00 for non-economic loss arising from the Landlords alleged breach of sections 50,52, 59 and 63 of the Act.

Agreed Facts

There was no dispute between the parties, and it was common ground that on or about 12 August 2004 the Tenant moved into the premises pursuant to a written residential tenancy agreement with a different landlord. The original term of the tenancy was 12 months. The premises are a home unit consisting of one bedroom, bathroom lounge and kitchen.
On 5 January 2016 the Tenant signed a new tenancy agreement ("the tenancy agreement"). The period of the agreement was 26 weeks commencing on 20 January 2016 and ending on 19 July 2016.
The Landlords (the Respondents in these proceedings) were not the owners of the premises when the tenancy agreement was signed. The Landlords purchased the premises on or about July 2020.
Upon the expiration of the fixed term, the Tenant remained in the premises on a periodic agreement.
On 11 November 2022 the Landlords issued a Notice of Termination under section 109 of the Act on the basis the tenancy agreement was frustrated. The grounds relied upon were "Property unsafe and not fit to live in, electricals throughout the home are faulty."
The Landlords disconnected electricity to the premises on 17 November 2022 by removing the main fuse.
The Landlords locked the power box.
The electricity to the premises was restored by Allman Electrical Services on 18 November 2022 at about 1:30pm. The Tenant did not have power for approximately 1 day.
On 21 November 2022 the Tribunal made interim orders against Jarvis Moult as Respondent including that the Landlords, their agents and contractors were not to interfere with the supply of electricity or other utilities to the premises, that they were not to access the premises without the consent of the Tenant or in accordance with section 55 of the Act, and not to interfere with the Tenant's occupation of the premises. The orders were to remain in force until 5.00pm on 25 November 2022 at which time the Tribunal would consider revoking or extending the orders.
On 23 November 2022 at about 8:00am, the Landlords disconnected the electricity who arranged for an electrician to remove the meter.
On 23 November 2022, at about 2:00pm, Endeavour Energy reconnected the electricity supply. The Tenant was without power for 6 hours.
At all times, the Tenant remained in the premises.
The tenancy ended on 21 December 2022 when the Tenant returned the keys to the Landlords.

Tenant's Submissions

The Tenant filed written submissions as part of his original documentation. The Tenant filed supplementary submissions on 23 February 2023 which are summarised below.
The Tenant submitted the Landlords breached their obligations under section 63 of the Act by failing to repair flood damage which occurred on 11 February 2020. He asserted the Landlord was made aware of the required repairs but only carried out minor repairs which did not properly fix the issues.
The Tenant argued the Landlords were responsible for the repairs even though they were not the owners of the premises when the flood damage occurred. The Tenant contended the Landlords "ought to have been aware" of the problem.
The Tenant submitted by reason of the breach of section 63, he is entitled to compensation of $9000.00.
Further, the Tenant claimed the Landlords breached section 50 of the Act by interfering with the Tenant's quiet enjoyment, and his peace, comfort, and privacy by disconnecting the electricity supply.
The Tenant stated he did not receive appropriate notice for 5 visits over a 6 month period. The Tenant claimed compensation of $2000.00.
The Tenant argued the failure to repair, and removal of the electricity supply were unreasonable and rendered the premises not fit for habitation. These actions constituted breaches of section 52 and 59 of the Act.
The Tenant claimed $3500.00 for the disconnection of the electricity supply on 17 November 2022 and $4500.00 for the disconnection of the electricity supply on 23 November 2022.
The Tenant further alleged the Landlords entered the premises without consent or in accordance with the procedure set out in section 55 of the Act. The Tenant disputed the Landlords' claim the electricity supply was dangerous and in need of urgent repair.
The Tenant submitted the Landlords had caused "discomfort, vexation, distress and disappointment" (paragraph 50 of written submission)
The Tenant asserted he is entitled to damages for non-economic loss for discomfort occurring from the failure to repair; distress from interfering with the electricity supply twice; and from the constructive eviction of the Tenant rendering him homeless. The compensation claimed was $3000.00.
The Tenant submits he was traumatised by the experience. He suffers from multiple health conditions including anxiety, paranoid schizophrenia and diabetes.
The Tenant suggested the Landlords' motivation in turning off the electricity was to force him from the premises.
The Tenant submitted to the jurisdictional limit of the Tribunal and reduced his claim to $14,850.00 for non-economic loss. The Landlord has reimbursed the Tenant $150.00 paid to reconnect the electricity.

Landlords' Submissions

The Landlords filed written submissions as part of their evidence on 1 February 2023.
In compliance with the directions made on 2 February 2023, the Landlords filed further written submissions on 23 February 2023. All submissions received on from the Landlords have been considered by the Tribunal.
The Landlords purchased the property in July 2020 with the existing Tenant. They were unaware of the Tenant's complaint about flooding.
On 5 August 2021 Ray White Nowra conducted a routine inspection of the premises. The agent reported "Tenant mentioned that they have had to replace their washing machine and a tv a couple of times due to power surges. This may also be caused by faulty power points. Recommend one of our trades attending to investigate and rectify."
The Landlords asserted the Tenant did not complain about the condition of the premises until after he received the rental increase notice on or about 3 February 2022.
The Landlords submitted the premises require major renovation. The managing agent Emma Hall served the Tenant with a 90 day termination notice on or about 8 April 2022 which required vacant possession on 11 July 2022.
The Landlords assert that during a meeting in or about 23 March 2022 at which the agent Emma Hall was present, the Tenant agreed to vacate the premises within 90 days so the Landlords could renovate the premises. It was further agreed there would be no rent increase during this period. Mr Charlesworth says the meeting was amicable and he carried out some repairs.
On 8 November 2022 Ray White Nowra conducted a routine inspection accompanied by Nathanael Charlesworth. The inspection report noted in the kitchen: "Very dangerous electricals have to be fixed……no lights are working". Similar notations were made for the lounge room and laundry.
The Landlords say the Tenant became hostile and abusive. He did not want to vacate the premises even though they were in a dangerous and unhygienic condition and his previous agreement to leave the premises.
The Landlords sought legal advice from a solicitor. They were advised under section 55 of the Act, a landlord could enter premises without permission in an emergency, to carry out urgent repairs or if there were health and safety concerns.
The Landlords were concerned about the dangerous electrical issues, the Tenant's safety and their personal liability in the event of an accident or fire.
The Landlords believed they could enter the premises without the Tenant's permission in the case of an emergency, to carry out urgent repairs or they had health and safety concerns.
Acting on the solicitor's advice, Nathanael Charlesworth, accompanied by an electrician, turned off the power on 17 November 2022. The Landlords argued the Tenant had unreasonably refused Mr Charlesworth and the electrician entry to the premises to carry out urgent electrical repairs.
The Tenant arranged for the electricity to be reconnected on 18 November 2022.
The Landlords returned to the premises on 23 November 2022 and disconnected the electricity. The Landlords submitted they were unaware of the Tribunal orders made on 21 November 2022 concerning interference with the electricity.
The Landlords denied any breach of the Act and rejected the Tenant's claim for compensation.

The Claim for Breach of the Tenant's Quiet Enjoyment

The First Disconnection on 17 November 2022

The Tenant submitted the Landlords interfered with his quiet enjoyment of the premises and his reasonable peace, comfort and privacy when the electricity was disconnected on 17 and 23 November 2022. He asserted the Landlords breached section 50 of the Act.
Section 50(1) and (2) of the Act provide: (1) A tenant is entitled to quiet enjoyment of the residential premises without interruption by the landlord or any person claiming by, through or under the land lord or having superior title (such as a head land lord) to that of the landlord. (2) A landlord or landlord's agent must not interfere with, or cause or permit any interference with, the reasonable peace, comfort or privacy of the ten ant in using the residential premises. : Maximum penalty--10 penalty units.
The covenant for quiet enjoyment is contained in clauses 14.1 and 14.2 of the tenancy agreement and relevantly, was in the following terms: The landlord agrees: 14.1 that the tenant will have quiet enjoyment of the residential premises without interruption by the landlord or any person claiming by, through or under the landlord or having superior title to that of the landlord (such as a head landlord), and 14.2 that the landlord or the landlord's agent will not interfere with, or cause or permit any interference with the peace, comfort or privacy of the tenant in using the residential premises
The Tenant claimed compensation for breach of the covenant of quiet enjoyment.
The Tenant claimed $7,500.00 for the disconnection of the electricity on 17 and 23 November 2022.
Additionally, the Tenant claimed the Landlords breached their obligations to provide and maintain the premises in a reasonable state of repair, having regard to the age of, rent payable and prospective life of the premises (section 63(1) of the Act)
In Pongrass v Small [2021] NSWCATAP 314 the Appeal Panel provided guidance on what constituted a breach of quiet enjoyment. The Appeal Panel stated at [55] - [56]: 55 The landlord has referred the Appeal Panel to numerous other decisions, for example Martin's Camera Corner Pty Ltd v Hotel Mayfair Ltd (1976) 2 NSWLR 15, where the issue was alleged breach of covenant due to water seepage. The water seepage was found to be a breach of quiet enjoyment. In the decision, Yeldham J referred to the definition of the covenant for quiet enjoyment as set out in Halsbury's Laws of England (3rd edition), vol 23 (1964) at [1298]-[1299] as follows: "The covenant for quiet enjoyment operates according to its terms to secure the tenant, not merely in the possession, but in the enjoyment of the premises for all usual purposes; and where the ordinary and lawful enjoyment of the demised premises is substantially interfered with by the acts or omissions of the landlord all those lawfully claiming under him, the covenant is broken, although neither the title to, nor the possession of the land may be otherwise affected...

If the act causes physical interference with the demised premises, there is a breach of covenant, notwithstanding that the act itself is done off the premises." 56 What constitutes a breach of quiet enjoyment was considered in Kenny v Preen [1962] EWCA Civ 2; (1963) 1 QB 499 at 512-3 by the Supreme Court of Judicature, Court of Appeal where Lord Justice Pearson said: "I would decide on two grounds in favour of the tenant's contention that there was, in this case, a breach of the covenant for quiet enjoyment. First, there was a deliberate and persistent attempt by the landlord to drive the tenant out of her possession of the premises by persecution and intimidation, and intimidation included threats of physical eviction of the tenant and removal of her belongings. In my view that course of conduct by the landlord seriously interfered with the tenant's proper freedom of action in exercising her right of possession, tended to deprive her of the full benefit of it, and was an invasion of her rights as tenant to remain in possession undisturbed, and so would in itself constitute a breach of covenant, even if there were no direct physical interference with the tenant's possession and enjoyment...

Secondly, if direct physical interference is a necessary element in the breach of covenant that element can be found in this case to a substantial extent, as I have already stated."

It is well settled that a claim for compensation for loss of quiet enjoyment of the premises and for inconvenience do not constitute a claim for personal injury damages and do not fall within the definition of non-economic loss in section 3 of the Civil Liability Act 2002 (NSW).
In Hyndes v Maddak Pty Ltd [2021] NSWCATAP 302 the Appeal Panel stated at [52]-[53] claims for breach of the covenant of quiet enjoyment are claims for breach of the residential tenancy agreement to which section 190(1) of the Act apply.
Any claims for breaches of the residential tenancy agreement (including breaches of quiet enjoyment and failure to repair) must be commenced within the period specified in the Residential Tenancies Regulation 2019 (NSW). The period prescribed by Regulation 39(9) is 3 months after the applicant becomes aware of the breach.
I find the claim for compensation for breach of the covenant of quiet enjoyment relating to the disconnection of the electricity supply on 17 and 23 November 2022 was made within time.
The authorities make it clear any finding on whether there has been a breach of the covenant of quiet enjoyment will need to be decided on the facts of the case and the authorities as to what is a breach of that covenant (see Hyndes v Maddak Pty Ltd [2021] NSWCATAP 302 at [40])
The Landlords admit they disconnected the electricity supply on 17 and 23 November 2022. The Landlords acknowledged responsibility for the disconnection and sought to justify their actions on the grounds of safety and concerns for their liability in the event of an accident.
They relied on legal advice from their solicitor about section 55 of the Act. They relied on that advice to enter the premises without prior the consent of the Tenant and giving prior notice.
Relevantly Section 55 of the Act provides: 1) A landlord, the landlord's agent or any other person authorised by the landlord may enter residential premises during a residential tenancy agreement without the consent of the tenant, and without giving notice to the tenant, only in the following circumstances-- (a) in an emergency, (b) to carry out urgent repairs, (c) if the landlord, landlord's agent or person has made a reasonable attempt to obtain entry with consent and has reasonable cause for serious concern about the health or safety of the tenant or any other person that the landlord, landlord's agent or person believes is on the residential premises,
Section 55 (1) provides that a landlord, the landlord's agent or any other person authorised by the landlord may enter residential premises during a residential tenancy agreement without the consent of the tenant, and without giving notice to the tenant (a) in an emergency; (b) to carry out urgent repairs; (c) reasonable concern about the health and safety of the tenant.
Although the words "urgent repairs" are not defined in section 55 which appears in Division 4 of the Act, section 62 gives some guidance as to the meaning of those words. Section 62 is found in Division 5 of the Act.
Relevantly Section 62 provides that the phrase "urgent repairs means any work needed to repair any one or more of the following: (f) a dangerous electrical fault; (i) a failure or breakdown of the gas, electricity or water supply to the residential premises; (k) any fault or damage that causes the residential premises to be unsafe or insecure."
The Landlords didn't provide evidence of the advice given by a solicitor or any tax invoice for their attendance. Notwithstanding the absence of documentary material, I accept Mr Charlesworth oral evidence on this point.
The Landlords argued they disconnected the electrical supply because it was dangerous and needed urgent repair. Nathanael Charlesworth told the Tribunal he attended the premises with an electrician who advised him to disconnect the electricity supply because it was in poor condition.
The Tenant stated he did not receive prior notice of the attendance by the Landlord and electrician or told the electricity would be disconnected. This statement was disputed by the Landlords.
The Tenant submitted the Landlords' disconnected the electricity to force him to vacate the premises. The evidence does not support that submission and I reject it.
Can the Landlords rely on section 55(1) of the Act to defeat the Tenant's claim? In determining that issue, the Tribunal has considered the evidence objectively.
The evidence is the Tenant complained to the agent about problems with the electricity supply during the routine inspection on 5 August 2021. The agent noted the Tenant's concerns about power surges in her report.
The Landlords tendered a report from Austi Electrical dated 20 October 2022. The report prepared by John Orr relevantly states: "There appears to be electrical burn marks around the earth on multiple socket outlets. This could indicate a potential fault to earth, which is a dangerous and potentially deadly situation. ……If left in its current state this could potentially lead to fire or cause personal injury or death. My advice to the owner was and is that no one should occupy the unit until all issues are rectified."
During the routine inspection on 8 November 2022, the agent observed the electricals were "very dangerous" and lights were not working. She informed the Landlords of her observations and concerns for the safety of the Tenant.
The agent issued a Notice of Termination under section 109 of the Act on 11 November 2022. The Landlords claimed the property was unsafe and not fit to live in due to the faulty electrical supply. The Tenant said he did not receive the notice.
The Landlords had reasonable concerns about their liability if there was injury or death caused by the electrical faults. I accept the oral evidence of Nathanael Charlesworth regarding the legal advice he received from his solicitor.
There are differing versions of what occurred when Nathanael Charlesworth attended the premises with the electrician on 17 November 2022. There is no doubt Mr Charlesworth spoke with the Tenant but the substance of the conversation is in dispute.
I find on the totality of the evidence, when looked at objectively, the electricity supply required an urgent repair on 17 November 2022. I find on the balance of probabilities there was a dangerous electrical fault which posed a risk to the Tenant's safety.
I find on the evidence there was a breakdown in the supply of electricity and the electrical faults caused the premises to be unsafe.
I find the Landlords made reasonable attempts to gain access on 17 November 2022 and had reasonable cause for serious concern about the health and safety of the Tenant.
I am satisfied Nathanael Charlesworth and the electrician knocked on the Tenant's door on 17 November 2022 to gain access to repair the electrical fault and were denied entry into the unit by the Tenant.
The evidence persuades me the Landlords were genuinely concerned about the state of the electrical supply and took reasonable steps to address the issue on 17 November 2022.
Section 52(2) of the Act relevantly provides a landlord must not interfere with the supply of electricity to the residential premises unless the interference is necessary to avoid danger to any person or to enable maintenance or repairs to be carried out.
I am satisfied the Landlords interfered with the supply of electricity on 17 November 2022 to avoid danger to the Tenant and to carry out maintenance or repairs.
Whilst there was interference with the Tenant's quiet enjoyment, given the circumstances, it is not appropriate to award damages for the first disconnection. I find the Landlords were permitted to access the premises pursuant to section 55 of the Act.

The Second Disconnection on 23 November 2022

Turning to a consideration of the second disconnection on 23 November 2022, the question is whether the Landlords removal of the meter from the electrical box constituted a breach of the covenant of quiet enjoyment.
The Tenant asserted the Landlords were aware of the interim orders made by the Tribunal on 21 November 2022 and wilfully breached them by disconnecting the electricity.
On 21 November 2022 the Tenant filed an urgent application seeking various orders. The Tenant named the Respondent as Jarvis Moult who he claimed was the landlord and owner of the premises.
On 21 November 2022, the Tribunal made interim orders or the Respondent Jarvis Moult not to interfere with the supply of electricity and other utilities to the premises, and not to interfere with the tenant's occupation of the premises. There was no attendance by or on behalf of the Landlords and the orders were made ex parte.
The interim orders named Jarvis Moult as Respondent and accordingly, were not enforceable against the Landlords because they were not a party to the proceedings at that time.
On 25 November 2022, the Tribunal amended the application by removing Jarvis Moult and joining the Landlords as a party. The Tribunal then made orders which were binding on the Landlords.
The Tenant submitted the Landlords ignored the interim orders. I reject the submission for the reasons set out above.
Ray White Nowra ceased managing the property for the Landlords on or about 23 November 2022. The Landlords claimed the agent did not inform them of the interim orders made by the Tribunal on 21 November 2022. Irrespective of whether the Landlords knew of the interim orders, the orders were not enforceable against them.
Even though the interim orders were not enforceable against the Landlords, they were required to comply with the Act and the provisions of the tenancy agreement.
I am satisfied the Landlords interfered with the Tenant's reasonable peace comfort and privacy on 23 November 2023 by removing the meter and thereby disconnecting the electricity supply.
On 18 November 2022 Allman Electrical Services attended the premises. In a report attached to the Tenant's bundle (page 54), the electrician details the work was carried out.
He confirmed "Testing results were all within requirements and no faulty equipment was detected". He restored the power with the assistance of Endeavour Energy and concluded: "From a safety point of view there was no reason for the wiring to be disconnected."
I reject the Landlords' defence the electricity was disconnected the second time for the same reasons as the first. The circumstances surrounding the second disconnection were completely different to the first disconnection.
I accept the Tenant's submission. The Landlords ignored the testing sticker on the inside of the meter box which confirmed the circuits were safe. The Landlords made no enquiries to ascertain who or why the electricity was reconnected. The disconnection was not undertaken pursuant to a repair or maintenance.
There is no evidence from the Landlord addressing the matters in section 55(1)(a), (b) or (c) of the Act. There is no evidence the electricity was dangerous or there was an emergency. Accordingly, the Landlords required the Tenant's consent for access to the premises.
I am not satisfied the Landlords interfered with the supply of electricity on 23 November 2022 to avoid danger to the Tenants or to enable maintenance or repairs to be carried out
How are damages to be assessed for breach of the covenant of quiet enjoyment? The Appeal Panel provided guidance in Pongrass at [46]: 46 The Tribunal was entitled to regard each of the above events as a breach of the tenants' quiet enjoyment. The Tribunal was entitled to exercise its judgement as to the effect of each of these aspects of the landlord's conduct. As was observed by Lord Dunedin in Admiralty Commissioners v SS Valeria (Owners) [1922] 2 AC 242 (HL) said at 248: "[I]n calculating damages you are to consider what is the pecuniary sum which will make good to the sufferer, so far as money can do so, the loss which he has suffered..."
And at [48]: 48 In Byrnes v Jakona [2002] FCA 41, Allsop J referred to the task of assessing damages in the context of a lessor's breach of quiet enjoyment and said at [110]: "The task necessitates what is likely to have occurred in the absence of those inferences. The difficulty in such an estimation does not relieve the Court from the responsibility of estimating them as best it can, even if this involves a measure of guesswork rather than estimation. In carrying out this task the Court is, in effect, doing what is required of a jury when it may have to form conclusions on slender materials and make allowances for contingencies. If some broad estimate is capable of being made in this way, it should be."
In assessing the Tenant's claim for non-economic loss, I have considered the period the Tenant was without power. The evidence establishes the meter was removed at about 8:00am and reconnected at 2.00pm.
The period of disruption was 6 hours during which time the Tenant remained in the premises. I accept the Tenant suffered anxiety and distress, but the inescapable fact is the electricity supply was off for a relatively short period.
The Tenant submitted the appropriate measure of damages for the second disruption is $4,500.00. I reject the submission. The amount claimed is excessive.
There is no dispute the Tenant had on-going health issues. These were exacerbated by the events on 23 November 2022. There is some evidence about the effect on the Tenant but no medical evidence linking the Landlords' actions directly to a worsening of the Tenant's conditions. The Tenant did not tender any medical reports.
Gail Puckeridge gave evidence of how the events affected the Tenant. She is the Tenant's support worker. She is not a medical practitioner. I rejected her evidence about the Tenant's medical conditions where it was outside her field of expertise.
I assess the damages for non-economic loss for the Landlords interference with the Tenant's reasonable peace, comfort and privacy on 23 November 2022 at $1500.00.

The Claim for Landlords' Failure to Repair

The Tenant alleged the Landlords failed to repair or investigate repairs, other than some minor repairs on 23 March 2022, since flood damage in February 2020. The Tenant claims $9000.00 for breach of the covenant to repair in section 63 of the Act.
In the alternative, the Tenant sought a rent reduction under section 44(1)(b) of the Act. The Tenant claims there was a reduction or withdrawal of goods, services or facilities provided with the premises.
The Tenant claimed a rent reduction of $100.00 per week for a period of 52 weeks for the period 1 October 2021 to 1 October 2022.
The Landlords disputed the Tenant's claims. The Landlords argued they were not the owners of the premises when the flooding occurred in February 2020 and were unaware of any issues.
In Luo v Campbell [2022] NSWCATAP 38 the Appeal Panel considered whether the current owner of a property was liable for any breaches of the tenancy agreement by the former owner. The Appeal Panel stated at [32]-[38]: 32 The landlords submit that the Tribunal erred and should not have awarded damages against them as they were not "responsible" for the breach because having only purchased the property on 18 January 2021. 33 The landlords submit that the decision was not fair and equitable and seek the leave of the Appeal Panel to set the decision aside. 34 The Tribunal addressed the issue raised in Ground 2 and invited the landlords' submissions. In particular the Tribunal said (see p 22 of the transcript): ...the tenant is entitled to bring a claim against the landlord or the landlord's successor in title because any claims from the tenancy flows through to the new landlord and that matter is dealt with in the conveyancing transactions. 35 The landlords' submissions do not address the issue other than to state that it is not fair and equitable to find a landlord liable for a previous landlord's breach. 36 We consider that the Tribunal was correct in finding that the current landlords are liable for any breach that occurred during the term of the tenancy. 37 Section 118 of the Conveyancing Act 1919 (NSW) provides: 118 Obligation of lessors' covenants to run with reversion (1) The obligation of a covenant entered into by a lessor with reference to the subject-matter of the lease shall, if and as far as the lessor has power to bind the reversionary estate immediately expectant on the term granted by the lease, be annexed and incident to, and shall go with that reversionary estate, or the several parts thereof, notwithstanding severance of that reversionary estate, and may be taken advantage of and enforced by the person in whom the term is from time to time vested by conveyance, devolution in law, or otherwise, and if and as far as the lessor has power to bind the person from time to time entitled to that reversionary estate, the obligation aforesaid may be taken advantage of and enforced against any person so entitled. (2) This section applies to - (a) leases made after the commencement of this Act, and (b) leases made before the commencement of this Act so far only as relates to breaches of covenant committed after the commencement of this Act. 38 In Hassiotis v Jiang [2017] NSWCATCD 84, the Tribunal stated: [25] Section 118 of the Conveyancing Act 1919 deals with the subsisting obligations of a lessor on the sale of the property, such as the terms of a lease, including the duration of that lease. In simple terms, the property is sold subject to those obligations. This includes any contingent obligations the lessor may have to the lessee. The new owner's reversionary interest in exclusive possession crystallises when those obligations come to an end.
I find the Tenant is entitled to bring a claim against the Landlords being successors in title for the alleged breach of section 63 of the Act.
A breach of the obligation to provide and maintain the residential premises in a reasonable state of repair may constitute a breach of the residential tenancy agreement which would give rise to a claim for compensation.
The Tenant's claim must be considered by reference to both sections 44 and 63 of the RTA. There are different time limit considerations in bringing claims under section 44 and section 63.
Section 190 (1) of the Act provides that any application to the Tribunal for a breach of a residential tenancy agreement must be made within the period prescribed by the regulations after the landlord or the tenant becomes aware of the breach.
Regulation 39(9) of the Residential Tenancies Regulations 2019 sets out the time limits for making applications to the Tribunal under the Act. Sub regulation 9 provides that for the purposes of section 190(1), the prescribed period is within 3 months after the applicant becomes aware of the breach. Therefore any claims for a breach of section 63 must be made within 3 months of the date on which the tenant became aware of the breach.
In the case of section 44 of the Act the tenant may before the end of the tenancy make an application that the rent is excessive having regard to the reduction or withdrawal by the landlord of any goods, services or facilities provided with the residential premises.
The Tenant relied on a report to Ray White Nowra on 11 February 2020 as follows: "house flooded in bedroom, kitchen, loungeroom. -lino+carpets need replacing, damage to kitchen cupboards, cockroaches"
The file note recorded the problem as occurring on 7 February 2020. There is no indication of why the premises flooded. What was the reason?
The routine inspection report dated 5 June 2020 undertaken by Ray White Nowra "the cupboards are bowed and swollen, Lino in the kitchen is ripped and coming up."
The Tenant submits the Landlords failed to carry out the repairs within a reasonable time and he has established a breach of the obligation to repair under section 63.
In determining if the Landlords have complied with their obligation to maintain the premises in a reasonable state of repair, the Tribunal must have regard to the age of, rent payable for and prospective life of the premises.
The rent was $175.00 per week. The premises were at least 20 years old, the Tenant having been in occupation since 2004. There is evidence before me which confirms the premises needed extensive renovation. There were concerns about the manner in which the Tenant maintained the premises.
The routine inspection dated 5 June 2020 is the last notation as to a problem with the cupboards and lino. The Tenant submitted minor repairs were done on 23 March 2022. The Tenant referred in his submissions to the repair of the toilet and replacement of 2 power points. There was no evidence from any witness to support this submission.
The Tenant provided a statutory declaration dated 23 November 2022 and attached his Summary of Instructions which were tendered. The Tenant did not mention the Landlords' failure to repair the kitchen cupboards or the lino, any discussions with the agent about the repairs or the impact of the alleged breach on him. The substance of the documents dealt with the disconnection of the electricity and did not address the other issues for which the Tenant was seeking compensation.
The alleged breach occurred in 2020. Whilst I find the Tenant informed the agent on 11 February 2020 of the flooding, the evidence does not persuade me the then landlord of the premises did not take steps to address the issue. There is minimal evidence of any complaints made by the Tenant about the condition of the cupboards or lino after 5 June 2020. It is reasonable to conclude from the lack of complaints or taking of other action the issue may have been resolved.
The Tenant bears the onus of proof. I am not satisfied on the evidence the Tenant has proved a breach of section 63. Even if the Tenant was able to prove the breach, there is no evidence how the breach has adversely affected his use and enjoyment of the premises.
If I am wrong in that conclusion, a further issue which arises is whether the Tenant's claim for compensation is subject to a limitation period.
Section 190(1) of the Act says such claims must be commenced within 3 months of the Tenant becoming aware of the breach. The breach occurred in 2020. I am not satisfied on the evidence the breach was a continuing breach as asserted by the Tenant.
The Tribunal has power to extend the period under section 41 of the Civil and Administrative Tribunal Act 2013. Any application to extend time must be the subject of evidence and take into account the principles in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22.
The Tenant did not seek an extension of time. Rather the Tenant requested the Tribunal consider the alternative claim for a rent reduction under section 44(1)(b) of the Act.
A reduction of rent under section 44 is dependent on factual findings that there was a "reduction or withdrawal by the landlord of any goods, services or facilities provided with the residential premises". There is insufficient evidence from which I can make a factual finding there was a reduction or withdrawal of goods, services or facilities in respect of the kitchen cupboards or lino.
A further issue concerns the Tenant's claim for a rent reduction of $100.00 per week. There is no evidence on how the calculation was made or the extent (if any) his use and enjoyment of the premises was adversely affected.

The Tenant's Claim for Interference with peace, comfort and privacy - failure to provide notice

The Tenant alleged he did not receive notice for approximately 5 visits over a 6 month period. The Tenant claims compensation of $2000.00.
The Tenant says the Landlords did not provide evidence to refute the claim. The Tenant bears the onus of proof and must provide sufficient evidence to prove the claim.
The Tenant referred in his statutory declaration to the Landlords' visits to his premises on 17 and 23 November 2022. I made findings about those matters earlier in this decision. The award of $1500.00 for disconnecting the electricity supply on 23 November 2022 includes a component for the failure by the Landlord to give notice and the interference with the Tenant's quiet enjoyment.
I respect of any other claims, the Tenant failed to properly particularise the dates of the visits. The Tenant did not provide evidence of dates or times when the alleged visits took place or what occurred.
The Landlords denied the Tenant's claim. The evidence is insufficient to enable me to make the factual findings necessary to award the Tenant compensation. The Tenant did not prove the breach on the other unknown dates.
Further, whilst each occasion on which the Landlords are alleged to have attended the premises without notice may amount to a breach, the breach is subject to the 3 month limitation period in section 190(1) of the Act. It appears the claims may be out of time.
For the above reasons, the claim for this alleged breach is dismissed.

Claim for interference with peace, comfort and privacy - Homelessness of the Tenant

The Tenant alleged he was left partly homeless due to the actions of the Landlords and claimed $3000.00 compensation.
The Tenant remained in the premises when the electricity was disconnected. The Tenant was not rendered homeless on either 17 or 23 November 2022.
The award of $1500.00 compensation for the Landlords' breach of the Tenant's quiet enjoyment ON 23 November 2022 is sufficient. To make a further award of compensation would amount to double compensation. I dismiss this claim.

The Written Submissions

One final matter requires comment. On 2 February 2023, I made orders for the parties to file and serve written submissions.
In compliance with the orders, both parties filed and served written submissions.
The supplementary written submissions received on behalf of the Tenant included material concerning John Peter Orr taken from various sources. One purpose of the material was to show the relationship between Mr Orr and the Landlords. The Tenant questioned his independence to provide a report.
In their submissions, the Landlords objected to the material. They stated: The addition of social media, Annexure A and B, referring to the relationship of John Orr the licensed electrician and my daughter, this is offensive and irrelevant.
The attempt to introduce this material as an attachment to written submissions is highly inappropriate. It is not evidence, has not been tested and is extremely prejudicial. It offends all the rules of fairness. For these reasons I have not referred to that material in making this decision.
The material has been available for some time. It is an attempt by the Tenant's representative to introduce further "evidence" through the back door. There is a proper way to introduce this material. The procedure was not followed in this case.

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

Amendments 16 August 2023 - Formatting amendments. 22 August 2023 - Formatting amendments. 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: 22 August 2023

At a glance

Court

Decision date

Source

Judgment (19 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (7)