Greco v NSW Land & Housing Corporation

Procedural history

1. The application to the Tribunal was made on 16 December 2020 seeking an order that the landlord carry out repairs, on the basis that the tenant had reported to the landlord repairs that had been required since 2018.
2. On 21 December 2020 the tenant sought to amend the application to include an order for compensation of $5000 for breach of s50 of the RT Act.
3. The tenant provided submissions on 20 January 2021 outlining the repairs required and including correspondence with the landlord.
4. On 12 February 2021 the landlord filed a cross application (RT21/06587) seeking compensation from the tenant for repairs to the property.
5. On 12 February 2021 the landlord provided a copy of the residential tenancy agreement (RTA); the ingoing condition report dated 21 June 2018 and "Parameters of Negotiation" listing works to be undertaken by the landlord by 1 May 2021.
6. Consent orders were made by the Tribunal on 15 March 2021 to the effect that the landlord would undertake and complete the works to the residential premises as identified in the Parameters of Negotiation by 1 May 2021 and that the landlord must give no less than 5 business days notice to the tenant of its intention to undertake the works or any part of them.
7. Both this matter and RT21/06587 were adjourned to be heard together and the tenant was granted leave to amend his claim by sending a copy of the amended claim for compensation and rent reduction to the landlord and the Tribunal by 6 April 2021.
8. By email on 6 April 2021 the tenant sought orders for a rent reduction under s43 and an order for compensation under s 187(1)(d). Further submissions were provided by the tenant in relation to both matters on 13 and 20 April 2021.
9. The landlord withdrew the application in RT21/06587 at the hearing on 17 May 2021.

Jurisdiction

1. The Tribunal has Jurisdiction to hear and determine this matter pursuant to the RT Act as there is a residential tenancy agreement ("RTA") between the parties. The tenancy began on 5 July 2018 and is continuing.

The tenant's evidence

1. The tenant provided a statutory declaration dated 19 April 2021 setting out that he had found damage in the house when he moved in in July 2018 and he had felt insecure. He had been subjected to a home invasion on 14 September 2018 and the perpetrator had put a knife to the tenant's neck. The perpetrator had stabbed the tenant's bedroom door and he, his uncle and his partner had been robbed. The tenant had received trauma counselling through Victims Services and NDIS (a copy of a decision under the Victims Rights and Support Act 2013 was provided). He was traumatised to leave the front door open or even step outside. He contacted the landlord and was told to call the maintenance service but no one had attended. He had installed security cameras for peace of mind. People threw rocks at the house and damaged the hot water system and the remaining flyscreens around the house. He was broken in to again but this time it was captured on CCTV and the police identified and caught the perpetrator. He reported the incident to housing but again nothing was done to repair the damage.
2. He engaged NEWTAAS and the matter was in the Tribunal when on 25 January 2021 he began to be stalked by JOSS employees who were watching his house which made him feel insecure.

Regarding the claim for rent reduction

1. The subsidised weekly rent was $200.
2. The tenant sought orders for a rent reduction under s43. In the amended application lodged on 6 April 2021 the tenant sought a reduction of $40 per week for the loss of bedrooms 1 and 3 due to the landlord's failure to carry out repairs to the premises ($10 per week for each bedroom) and for the partial loss of the use of the kitchen ($20 per week). At the hearing, this was reduced to $30 for the loss of 1 bedroom and the kitchen, from the time that the application was lodged in the Tribunal (16 December 2020) to the date that the repairs were completed on 1 May 2021.
3. The tenant submitted that he could not use all of the bedrooms in the house as the doors did not open due to the damaged carpet. The carpet was frayed and was a trip hazard. The door had to be pushed open with force causing more damage to the carpet.
4. The kitchen could not be used to full capacity due to the cupboards falling apart. There was damage to the tiles and a wall in the bathroom caused by a leak in the shower and the toilet bowl was loose due to damage caused by one of the landlord's contractors.
5. The tenant submitted that the landlord's evidence regarding the damages claim (for RT21/06587) demonstrated that the landlord was aware of the damage and the need for repairs.

Regarding the claim for compensation

1. The tenant also sought an order for compensation of $5000 for the landlord's breach of the RTA and the RT Act. The tenant submitted that he had reported repairs that were needed at the property and the landlord had not carried out the repairs. He had also reported the lack of security at the house due to locks and screens being damaged from break ins at the property.
2. The tenant sought compensation for the inconvenience and disruption suffered through dealing with an insecure property. He had also been dealing with the ongoing disrepair and fear of insecurity related to the failure to repair locks, security doors and screens at the property. He had attempted to mitigate the loss by installing security cameras.
3. The tenant had also felt intimidated during the tenancy. He believed that he was being stalked by JOSS, the contractors for the landlord's maintenance call centre. He had provided photographs of a JOSS vehicle parked in his street, close by his home. He reported that JOSS very seldom drove in his street, let alone parked there, without attending any of the landlord's properties in the street. The landlord had advised that the worker could have been checking emails, message or phone calls and so had to stop in the tenant's street, but the tenant was not convinced.
4. The landlord had also breached the Tribunal's consent orders in relation to the 5-day notice period for repairs, in that JOSS had advised on 26 March 2021 that they would be attending his property that day at 12 noon.
5. The tenant submitted that he had been inconvenienced and frustrated, and his use of his home had been significantly limited. He had not had the pleasure and amenity of the home, the fundamental right of quiet enjoyment established by the contract. He had experienced distress, anxiety and inconvenience due to the landlord's breach of the RTA and the right to quiet enjoyment of the property: 1. He had reported that the property was in a state of disrepair 2. Access appointments for inspections were made for particular times, which were attended late or cancelled with no notice given to the tenant 3. The landlord expected access to the premises when no appointment had been made 4. Tradespeople had attended the property with no notification that access would be required 5. The tenant had been told that work would commence on a particular date and consent orders were made for the work to be completed by 1 May 2021 but at the time that the written submissions were lodged (20 April 2021) no work had commenced 6. The tenant had continually been required to contact the landlord and maintenance line to report and arrange repairs and no repairs had been undertaken 7. The tenant instructed NEWTAAS to report the repairs on his behalf and to arrange inspections of the property by the landlord so that a full assessment of the repairs could be appraised.
6. The tenant felt that he had not been heard or listened to until he instructed NEWTAAS to lodge an application to NCAT on his behalf. The tenant had 4 CSOs [client services officers] since the tenancy commenced on 5 July 2018. Repairs were reported to each CSO but no action was taken to address the repairs issues. The tenant was frustrated by the necessity to report and explain the repair issues and problems repeatedly. Repeating the details of the break in caused the tenant distress.

The landlord's evidence

1. The landlord submitted that the tenant's rent was already subsidised by $130.05 and a further rent reduction would not be warranted. The kitchen had been up to standard when the tenant moved in and it was clean, safe and habitable.
2. The applicant had asked for repairs to the carpet but the repairs were cancelled due to the inability to access the property. The landlord did not agree to a rent reduction for the carpet.
3. In relation to the delays on the repairs, the landlord submitted that NSW Land and Housing did not deal with maintenance issues through the local office and it was incumbent on the tenant to report the issues through the maintenance line, not to the relevant case officer.
4. On 30 June 2019 the kitchen drawers were broken and removed which was not deemed to be a safety issue. The usual program for non-urgent repairs was 2 - 7 years and there were no calls logged to suggest that the tenant had been left without facilities.
5. In the "Parameters of Negotiation" document provided by the landlord which was prepared for the first Tribunal hearing on 6 January 2021, the landlord outlined the required repairs (which, in consent orders on 15 March 2021 the landlord undertook to complete by 1 May 2021): 1. Re-gauze all fly screens and fly screen doors as required to make functional 2. Inspect and repair damaged tiles and walls in bathroom to make functional 3. Install new door and make functional bedroom 2 door and door frame (Damaged during robbery) 4. Repair and paint cracking to laundry wall 5. Replace existing kitchen with new 6. Replace carpets to Bed 1 and 3 replace vinyl to dining room 7. Toilet bowl is loose 8. Replace vanity basin with new

The rent reduction claim

1. Under s 43(1) of the RT Act, the tenant may make a written request to the landlord at any time for a reduction in rent if the landlord reduces or withdraws any goods, services or facilities provided with the residential premises, even if those goods, services or facilities are provided under a separate or a previous contract, agreement or arrangement.
2. Under s 44(3) of the RT Act, a tenant may, before the end of a tenancy, make an application that the rent is excessive, having regard to the reduction or withdrawal of any goods, services or facilities provided with the residential premises. Under s44(1)(b), the Tribunal may make an order that rent is excessive having regard to the reduction by the landlord or facilities provided with the residential premises and that, from a specified day, the rent for the residential premises must not exceed a specified amount.
3. As amended at the Tribunal's hearing, the tenant sought a rent reduction of $30 per week from 16 December 2020 to 1 May 2021 (19 weeks and 3 days).
4. The landlord did not agree, contending that the kitchen was serviceable at the time that the tenant moved in and that the repairs were in line with the landlord's program of 2 - 7 years.
5. The repairs outlined in the Parameters of Negotiation document support the tenant's claim that, at least by the time the application was lodged, the carpet in the bedrooms and the kitchen were in a sufficient state of disrepair to require replacement. On this basis I accept the tenant's contention that the kitchen facilities were reduced and that he was unable to access one of the bedrooms due to the state of the carpet. The landlord's contention that the delays in undertaking the repairs were considered to be reasonable by the landlord does not change the fact that the facilities provided with the residential premises had been reduced.
6. The landlord contended that the tenant's rent should not be reduced because his rent was already significantly subsidised. However many tenants have subsidised rent whether through government assistance, their employer or other sources. The fact that the rent is subsidised is not a relevant consideration in assessing whether the tenant is entitled to an excessive rent order. There is no exclusion in ss 43 or 44 of the RT Act for a rent subsidised tenant and a rent subsidy does not disentitle a tenant to a rent reduction when the facilities that they are renting are reduced due to the landlord's failure to make repairs of which the landlord has been notified.
7. As a proportion of the overall rent of $200, I consider the amount of $30 requested by the tenant is a reasonable reduction, as is the period over which it has been requested.

The compensation claim

1. Under s 190(1) of the RT Act, a landlord or a tenant may apply to the Tribunal for an order in relation to a breach of a residential tenancy agreement within the period prescribed by the regulations after the landlord or tenant becomes aware of the breach or within such other period as may be prescribed by the regulations.
2. Under s 187(1)(d) of the RT Act, the Tribunal may, on application by a landlord or tenant or other person under this Act, or in any proceedings under this Act, make an order as to compensation.
3. The tenant sought $5000 compensation from the landlord for the landlord's breach of the RTA. The tenant had reported repairs that were needed at the property and the landlord had not carried out the repairs. The tenant had reported the lack of security at the house due to locks and screens being damaged due to break ins which had caused him loss of enjoyment of the property. He had experienced disappointment, inconvenience and distress due to the landlord's breach for failing to carry out repairs to the property.
4. The tenant submitted that a claim for compensation for loss of quiet enjoyment of the premises, and for inconvenience, did not constitute a claim for personal injury damages and did not fall within the definition of non-economic loss in s 3 of the Civil Liability Act 2002 (the Civil Liability Act).
5. As is made clear by the decision of the High Court in Moore v Scenic Tours Pty Ltd [2020] HCA 17; [94 ALJR 481] s 16(1) of the Civil Liability Act is not applicable to such claims; see also the Appeal Panel's decision in Makowska v St George Community Housing Ltd [2020] NSWCATAP 159, which was upheld by the Supreme Court in Makowska v St George Community Housing Ltd [2021] NSWSC 287.
6. If the landlord has breached its obligations under the RT Act, it is open to the Tribunal to award compensation to the tenant under s187(1)(d) of the RT Act and the Tribunal can take into account distress and inconvenience in determining the damages (see Residential Tenancies Law and Practice New South Wales, 6th Edition by Allan Anforth, Peter Christenson and Sophie Bentwood (Anforth) at [2.187.6] and the cases cited there).
7. In his statutory declaration, the tenant attested to feeling unsafe due to security issues in his home having been identified but not repaired by the landlord, and subsequently being subjected to a home invasion in 2018 after which the repairs still were not made. Even when the landlord's contractors finally did attend in order to undertake the repairs outlined in the Tribunal's orders, they did not give the notice required. He then became concerned that JOSS contractors were stalking his premises because they were frequently parking (uncharacteristically) in the street.
8. As a preliminary issue, I have taken into account the submissions on behalf of the landlord regarding the potential reasons for JOSS contractors parking in the street and I accept that there were many reasons that they might be doing so. I am not satisfied that the JOSS contractors were intentionally harassing the tenant, although I accept that he might have felt that way. I am not satisfied that the landlord has breached any of its obligations by way of the JOSS contractors parking in the tenant's street.
9. However, I am satisfied that the tenant's concerns regarding his security were justified particularly in light of the evidence regarding the home invasion which took place in 2018. The landlord has acknowledged in the "Parameters of Negotiation" document that repairs have been required and not undertaken until after the application was made to the Tribunal. I am satisfied that this constituted a breach of the landlord's duty to repair under s63 of the RT Act.
10. The landlord also acknowledged that even when contractors did attend, the required notice was not given. I am satisfied that this constituted a breach of s55 of the RT Act. This breach was exacerbated by the landlord's failure to abide by the Tribunal's specific orders to give the tenant five working days notice of its intention to undertake the works, or any part of them. The landlord contended that the repairs were undertaken by JOSS contractors who were not answerable to the landlord's regional office. However, it was the landlord who consented to the Tribunal's orders and it was the landlord who was responsible to ensure that the repairs were conducted in accordance with those orders.
11. Under s 50(2) of the RT Act, the landlord is obliged not to interfere with, or cause or permit any interference with, the reasonable peace, comfort or privacy of the tenant in using the residential premises. The correct test for determining whether the respondent has breached its obligation to provide the applicant with quiet enjoyment is whether there had been substantial interference with the enjoyment of the premises through an act or omission that was either deliberate or negligent in the sense that the consequences were reasonably foreseeable (Advance Fitness Corporation Pty Ltd v Bondi Diggers Memorial & Sporting Club Ltd [1999] NSWSC 264).
12. I am satisfied that by failing to undertake the repairs and so failing to make the tenant's home secure and by failing to give appropriate notice when contractors finally did attend to undertake the repairs, the landlord did cause interference with the reasonable peace, comfort and privacy of the tenant in using the residential premises and so breached s 50.
13. I have considered whether an award of damages in addition to the rent reduction found above would constitute double compensation. A claim for damages for loss of quiet enjoyment and an order for the reduction of rent are not necessarily mutually exclusive forms of relief. Depending on the claims made, there may be facts common to both types of claim which would need to be taken into account in order to avoid double compensation. For example if the premises (or part thereof) cannot be used in the manner intended or its use is in some way impaired by reason of a landlord's breach, it may be inappropriate to both reduce the rent and make an award of damages for loss of use; see Roberts v NSW Aboriginal Housing Office [2017] NSWCATAP 9.
14. In the present case I am satisfied that compensation and the rent reduction would be for different purposes. The rent reduction recognises that the tenant has been unable to use particular areas of the residential premises. An award of damages recognises that the tenant's rights under the RT Act and under the RTA have been breached, as a separate issue from the reduction in the utility of the premises.
15. The landlord's representative submitted that the delay in the repairs was consistent with the landlord's program for non-urgent repairs of 2 - 7 years. I do not consider this to disentitled the tenant to compensation; the fact that the landlord might consider the delay to be reasonable does not make it so, particularly when the repairs are in relation to security matters.
16. The tenant claimed compensation of $5000. I consider that amount to be too high, even apart from the fact that it appears to include harassment from JOSS employees (which I have not accepted) and the limitation of the use of the home (which has already been compensated though the rent reduction).
17. I have taken into account the comparative awards as set out in the tenant's submissions and in Anforth at [2.187.7]. Awards for circumstances where repairs have not been made and notice of entry has not been given generally appear to range from $100 - $1000. Weighing the length of time taken to undertake the repairs, I consider the appropriate amount for breach of the right of quiet enjoyment to be $500.

Extension of time

1. Under cl 39(9) to the Residential Tenancies Regulation 2019, for the purposes of section 190(1) of the Act, the prescribed period in which to make an application to the Tribunal is within 3 months after the applicant becomes aware of the breach.
2. In the application to the Tribunal, the tenant raised the necessity to apply for an extension of time in which to make the application. He stated "I have reported the repairs to the maintenance call centre, and to my 4 Client Services officers. I was assured that the repairs would be completed. The repairs have not been completed. I was not aware that I could apply to NCAT asking for the repairs to be done until I spoke with NEWTAAS. NEWTASS has been advocating for me, but the repairs are still not completed."
3. The application for an extension of time was not contested in the landlord's submissions or evidence.
4. Under s 41(1) of the Civil and Administrative Tribunal Act 2013 (the NCAT), the Tribunal may, of its own motion or on application by any person, extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation.
5. In Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 the Appeal Panel set out relevant factors to be taken into account when considering whether to allow an extension of time: (a) The length of the delay; (b) The reason for the delay; (c) The appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and (d) The extent of any prejudice suffered by the respondent (to the appeal).

For the repairs

1. The initial application for repairs was resolved by consent in the orders made by the Tribunal on 15 March 2021. The landlord's consent to an extension of time is implicit in its consent to those orders and it is unnecessary to make findings regarding whether the Tribunal should make an order extending the time limit to make that application.

For the rent reduction

1. Under s43(1) the tenant may make a written request to the landlord at any time for a reduction in rent if the landlord reduces or withdraws any goods, services or facilities provided with the residential premises.
2. The rent reduction was claimed from the date of the NCAT application and there is no time limit issue in relation to that application.

For compensation as a result of the breach of the tenant's right to quiet enjoyment and the landlord's duty to repair

1. The landlord's obligation to repair and to allow the tenant quiet enjoyment of the property was ongoing at the time that the application was made (as discussed in Roberts v NSW Aboriginal Housing Office [2017] NSWCATAP 9 at [91] - [92]. However under cl 39(9) the three month period in which to apply to the Tribunal for an order as the result of a breach of the RTA begins "after the applicant becomes aware of the breach." Although the tenant was clearly aware that the repairs had not been completed when he was bringing these issues to the landlord's attention, on the basis of his application I am satisfied that he was not aware that the landlord had breached the RTA such that the tenant could apply to the Tribunal for an order until he engaged NEWTAAS, less than three months prior to lodging the application. In such circumstances, the tenant would not require an extension of time under s 41 of the NCAT Act.
2. In the event that it is required, although the delay was considerable, the reasons for the delay were compelling. As demonstrated from the orders above, the tenant had good prospects of success. Although the landlord has been required to pay compensation as a result, had the landlord made the repairs in reasonable time, the application for compensation would not have been made to the Tribunal. The landlord should not benefit from their own negligence.
3. Taking into account the factors set out in Jackson, if necessary I would grant an extension of time in which to lodge the application for compensation for breach.

Orders

1. The Tribunal makes the following orders: 1. 1 The rent shall not exceed $170.00 per week as from 16 December 2020 to 1 May 2021; 2. 2 any rent paid by, or on behalf of, the tenant in excess of that amount is to be refunded through an adjustment to the rent ledger within 14 days of these orders and 3. 3 the respondent is to pay the applicant $500 by way of compensation for breach of his right to quiet enjoyment, such amount to be paid immediately.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 August 2021