• Leave to proceed is granted;
• The landlords breached their obligations under ss 65 and 68 of the RTA;
• The tenant failed to mitigate loss by failing to notify the agent of work left unfinished by tradesmen; and
• It is appropriate in the circumstances to increase the amount of compensation owed to the tenant from $2,100 to $2,600:
  • $2,500 is awarded due to the significant inconvenience caused to Ms Harris; and
  • $100 is awarded due to Mr Harradine's breach of s 65 of the RTA.

Internal Review - Residential Tenancy - Tenant Application - Compensation - Obligation to Repair - Duty to act with reasonable diligence

Internal Review - Residential Tenancy - Tenant's entitlement - Quiet enjoyment

South Australian Civil and Administrative Tribunal Act 2013 s 70

Residential Tenancies Act 1995 s 65, s 68, s 78, s 110

Re AKS [2016] SACAT 19

Varricchio v Wentzel [2016] SASC 86

Tronnolone v Edwards & Bryan [2016] SACAT 27

Southwark London Borough Council v Tanner (2001) 1 AC 1

McC v Director of Housing [2009] VCAT 2

Kenny v Preen [1962] EWCA Civ 2; [1963] 1 QB 499

Southwark London Borough Council v Tanner [1999] UKHL 40; [1999] 3 WLR 939

Spathis v Hanave Investment Co Pty Ltd and Anor [2002] NSWSC 304

Worrall v Commissioner for Housing for ACT [2002] FCAFC 127

The respondents appeared in person and were represented by Ms K Barnett, We Connect Property

Made under the South Australian Civil and Administrative Tribunal Act 2013 s 70(6)(b)

1. This is an application for the internal review of the Order made by the Tribunal on 25 May 2022 in matter number 2020/SH002505 (the original Order).
2. In the original Order, the Tribunal found that the landlords were in breach of their obligations to the tenant under s 68 of the Residential Tenancies Act 1995 (the RTA) and s 65 of the RTA. The Tribunal made orders for repairs and compensation.
3. The applicant tenant, Ms Harris, claims that the respondent landlords, Mr and Ms Harradine, have failed to carry out the repairs as required by the original Order and the amount of compensation directed to be paid to her for Mr and Ms Harradines' breaches is significantly inadequate.

1. It was agreed in the review hearing that the repairs had not yet been finally completed, but final completion was imminent. I explained to Ms Harris that in relation to any non-compliance by Mr and Ms Harradine concerning the repairs (ie non-compliance with the original Order), she was able to make a written request for another hearing (which could be an email), seeking further orders in that regard (pursuant to Order 3 of the original Order) although noting that as the tenancy is due to expire in any event on 11 August 2022, and in view of the fact that the final repairs are scheduled for completion within the few days after the hearing, the usefulness of a further hearing in that regard is limited. However, the issue of the delay in the repairs is something that can otherwise be taken into account in the course of the review as explained below.
2. Although in her original application, Ms Harris sought orders for repairs and compensation in relation to the lack of skirting boards in the rumpus room which was used by her father as a bedroom, during the course of the review hearing Ms Harris said that she did not wish to pursue that matter any further.

The question of leave for the review to proceed

1. An application for internal review is made under s 70 of the South Australian Civil and Administrative Tribunal Act 2013 (the SACAT Act). An application for internal review requires that on review, the Tribunal will make the correct or preferable decision taking into account any evidence available at the original hearing, giving appropriate weight to the original Order and taking into account any evidence the Tribunal considers is relevant and appropriate to take into account in the course of the review process.
2. An application for review necessarily involves an application for leave. The Tribunal will adopt the following approach as set out by Justice Parker in Re AKS [2016] SACAT 19 (at 14) in determining whether or not permission should be granted:

...the Tribunal should take the same approach to the exercise of its discretion... > > to grant permission for an internal review as is taken by the Supreme Court when it decides whether or not to grant permission for a civil appeal. The overriding principle is always the interests of justice. The ordinary approach is that permission will only be granted where an appeal is reasonably arguable and the subject matter is of sufficient substance to justify consideration...

3. In this matter, I consider that leave should be granted for the following reasons:
   • The amount of compensation allowed under the original Order was made on the basis that the repairs to the main bedroom would be finalised within a short time after the hearing conducted on 23 May 2022 but that did not occur; and
   • the original Order did not specify the manner in which Mr and Ms Harradine were in breach of their obligations under s 68 of the RTA, the specific amounts of compensation payable for the breaches of s 68 and s 65 of the RTA respectively, and the issue of mitigation of loss was not considered in relation to the claim for compensation arising from the breach of s 68 of the RTA.

1. The tenancy commenced on 11 August 2021 when Ms Harris moved into the property with her two children and her father.
2. On 19 October 2021 the agent conducted a routine inspection at the property during which Ms Harris reported that there was some dampness in the room she was using as her bedroom (the main bedroom). It was agreed that the parties would monitor the issue and take a "wait and see" approach.
3. On 24 November 2021 Ms Harris decided that the dampness in the main bedroom had reached a point where she could no longer sleep in the room and so for a while she slept in the living area. That was not viable from a longer-term perspective and so subsequently she used a small spare room, known as the toy room, as her bedroom.
4. In early December the agent created a work order for a tradesperson to attend at the property to investigate the issue of the dampness in the main bedroom.
5. On 17 December 2022 a tradesperson attended and removed gyprock to assess dampness. The job was beyond the skill level of the tradesperson and he reported accordingly to the agent.
6. On 16 January 2022 a builder attended to carry out further repairs which were:
   • replacing rotten wall frame timber;
   • replacing gyprock;
   • replacing damaged skirting boards and preparation of room for painting; and
   • digging out blocked drains and dirt around external wall.
7. At this point, the agent assumed that the job had been completed but it had not. There was still painting to be done, and the carpet had not been assessed for mould or other damage.
8. On 4 March 2022 the agent sent an email to Ms Harris informing her that Mr and Ms Harradine had agreed that she should receive compensation due to the inconvenience she had suffered in relation to the dampness in the main bedroom and a rent credit of $350.00 had been applied to her account. This was intended to be $50.00 per week for seven weeks.
9. Ms Harris contacted the Housing Safety Authority (the HSA). The HSA attended on 4 March 2022. Their photos show that the dampness in the walls had been addressed, and the walls had been prepared for painting. The HSA did not issue a formal notice.
10. The agent attempted to conduct a routine inspection in April 2021 but that inspection was postponed until May as Ms Harris was suffering from COVID. That inspection was carried out on 3 May 2022.
11. On 2 May 2022 there was an argument between Ms Harris and Ms Harradine at their place of employment, about the issues arising from the tenancy. At around the same time Mr Harradine made a phone call to Ms Harris during which he said that she should move out and during the course of which he used profanities.
12. The painting work was completed by 7 June 2022.
13. On 15 June 2022 the HSA wrote a letter to say that no further action would be taken in relation to the property.
14. The carpet was re-laid in the week of 18 July 2022 but was not due to be cleaned until the week of 1 August 2022. Ms Harris said that due to the mould on the carpet, she was not prepared to move back into the main bedroom until the cleaning was done.

1. The original Order correctly states the law in relation to a landlord's obligation concerning defects which arise at the property as follows:[1]

a) Section 68(1) of the RTA requires the landlord to ensure that the premises are in a reasonable state of repair at the commencement of the tenancy and the landlord will be in breach of this obligation if there is a defect in the premises which ought reasonably to have been apparent upon an inspection at that point (Varricchio v Wentzel [2016] SASC 86 [47]). > > b) Once the tenancy has commenced, the landlord is not responsible for defects which arise subsequently unless the landlord is aware of the defect or ought to be aware of the defect and this is a different standard from that which applies at the commencement of the tenancy (Varricchio v Wentzel [54] - [56]).

2. Section 65 of the RTA states that the landlord will not cause or permit an interference with the reasonable peace, comfort or privacy of the tenant in the tenant's use of the premises.
3. Section 110(1)(c) of the RTA provides that the Tribunal may make an order for compensation if a party is in breach of their obligations under the RTA or the tenancy agreement.

1. Therefore, the questions for determination are:

a) Are Mr and Ms Harradine in breach of their obligations under s 68 of the RTA and if so, should an order be made for compensation in favour of Ms Harris? > > b) Have Mr and Ms Harradine acted in breach of Ms Harris' rights under s 65 of the RTA and if so, should an order be made for compensation in favour of Ms Harris?

Are Mr and Ms Harradine in breach of their obligations under s 68 of the RTA?

1. The original Order found that Mr and Ms Harradine were in breach of their obligations under s 68 of the RTA in relation to the dampness in the main bedroom (the defect) but did not specify the facts on which that finding was based.
2. I consider that it was in early December 2021 that the defect was properly identified, and this is consistent with Ms Harris' approach.[2] Once the tradesperson attended on 17 December 2021, Mr and Ms Harradine were on notice that there was a defect in the main bedroom which required repair.[3] The timing was unfortunate given the Christmas/New Year period. Taking that into account, I consider that the next attendance of a tradesperson at the property for this issue on 16 January 2021 was reasonable (i.e. the delay was not unreasonable, taking into account the Christmas period).
3. However, while that tradesperson carried out the majority of the repairs, the repaired sections of wall still required painting, and no one had considered whether or not the condition of the carpet was reasonable. The walls were only finally painted in the first week of June 2022. The condition of the carpet was only being addressed at the time of the review hearing. Mr and Ms Harradine should have anticipated that the carpet might be damaged or require cleaning due to the dampness in the room.
4. I consider that it was reasonable for Ms Harris to not use the main bedroom until all the repairs were completed, including the painting and any cleaning/repair of the carpet. I consider that the length of time in finalising the repairs (from mid-January 2022 until July 2022) is unreasonable, and in that regard Mr and Ms Harradine were in breach of their obligations under s 68 of the RTA.

Should Ms Harris be awarded any compensation in relation to the breach of s 68 of the RTA?

1. The original Order correctly states the general law in relation to compensation as follows:

a) A tenant cannot claim compensation for personal injury (such as stress or another medical condition - s 110(2) of the RTA). The Tribunal does not have power to order compensation for distress or loss of enjoyment of the property. However, the Tribunal does have power to award compensation for inconvenience or financial loss[4] and this means that the Tribunal cannot make an order for compensation for claims such as the reimbursement of medical expenses or stress. > > b) Any amount of compensation to be awarded is not determined in accordance with any set scale or formula. The amount of any compensation to be awarded is a global amount taking into account all of the factors in the particular dispute.[5]

2. However, the original Order overlooked the issue of mitigation of loss. Section 78 of the RTA applies the common law principles about mitigation of loss to any claim for compensation arising from a breach of a residential tenancy agreement. Therefore, in making a claim for compensation against a landlord on the basis of the landlord's breach of their obligations under s 68 of the RTA, a tenant is required to take reasonable steps to mitigate any loss and is not entitled to compensation for damage or loss that could have been avoided by those steps.
3. During the original hearing, there was some discussion concerning the impact of the delay in the repairs on Ms Harris and she said that the impact had been far greater than merely not being able to use that room (for example, having to store items from that room elsewhere in the house and not inviting friends to the house). Ms Harris sought compensation equal to a rent reduction of about 40% over a period of 27 weeks, which on my calculation is approximately $5,184.00.
4. In the original hearing, the agent said that the main bedroom represented approximately 13% of the total area of the house and she suggested that as the basis for the award of compensation (which would have been significantly less than the amount originally claimed by the tenant).
5. During the review hearing, Ms Harris said that she had found it necessary to throw out a number of personal items because of damage by mould, but there was no actual evidence of this (such as photos or information about the cost) and so I will not take this into account.
6. The original Order directed Mr and Ms Harradine to pay compensation of $2,100.00 to Ms Harris (but this was an amount intended to compensate Ms Harris for the breaches of s 68 and also the breaches of s 65 of the RTA).
7. I accept that Ms Harris has been significantly inconvenienced in her use of the house due to the delay in the finalisation of the repairs. I consider that she should be compensated for that inconvenience. When making an order for compensation, it is appropriate for the Tribunal to take into account factors which are relevant. In this matter in forming a view about the amount of compensation for Ms Harris' inconvenience from Mr and Ms Harradines' breaches of their obligations under s 68 of the RTA, I have taken into account the following factors:
   • Ms Harris did not use the main bedroom for a period of about 35 weeks and that room represents about 13% of the house but the inability to use that room only amounted to a breach of the obligation under s 68 of the RTA for a period of about 26 weeks;
   • during that period Ms Harris was inconvenienced because -
     • she had to sleep in another, smaller room which was less comfortable for her;
     • items which would otherwise have been stored in the main bedroom have been stored around the house causing the house to be less tidy than it otherwise would have been;
   • Ms Harris and her family were less likely to invite friends to the house because of the untidy state of the house.
8. However, I also consider that Ms Harris failed to mitigate her loss. After the tradesperson attended in January 2022 and there was still outstanding work to be done to finalise the repairs in the main bedroom, Ms Harris did not contact the agent and inform them that the painting had not been done, and that the carpet needed to be assessed for cleaning/replacement. Instead, she contacted the HSA. After the tradesperson attended in January 2022, the agent and Mr and Ms Harradine were under the impression that the repairs to the main bedroom had been finalised. If they had been aware that the repairs had not been finalised, it is likely that the final repairs would have been undertaken more quickly.
9. Taking into account all of the evidence, I consider that compensation of $2,500.00 is appropriate for this breach.

Have Mr and Ms Harradine acted in breach of Ms Harris' rights under s 65 of the RTA?

1. The evidence which is relevant to this issue, is the incident which occurred at Ms Harris' workplace on about 2 May 2022 and the phone call from Mr Harradine to Ms Harris at about the same time; and also a series of phone calls made by Mr Harradine to Ms Harris late at night on 24 January 2022 and early in the morning on 25 January 2022. The original Order refers to 13 missed calls from Mr Harradine over that period.
2. In the original Order, the Tribunal found that Mr and Ms Harradines' conduct amounted to a breach of Ms Harris' rights under s 65 of the RTA.
3. The original Order correctly stated that as a general rule, in order for an interference with the tenant's enjoyment of the property to constitute a breach of a tenant's right to quiet enjoyment under s 65 of the RTA, the interference must be serious or substantial.[6]
4. The conduct of which Ms Harris has complained had no physical component, but Ms Harris' submission is that Mr and Ms Harradines' harassment of her is sufficient to constitute a breach of her rights under s 65 of the RTA.
5. In Kenny v Preen[7] a landlord had engaged in a campaign of threats and harassment to get rid of a tenant. The Court held that a landlord does not breach the right to quiet enjoyment merely by asserting that the tenant is in breach and requiring the tenant to remedy the breach - even if the landlord makes such requests frequently and rudely. However, the landlord will be in breach if the landlord embarks on a course of conduct involving threats of physical eviction and removal of the tenant's belongings in an attempt to have the tenant vacate the property, particularly where those threats are accompanied by a substantial element of direct physical interference (such as repeated knocking on the door and shouting threats).
6. This approach was confirmed in Southwark London Borough Council v Tanner[8] and Spathis v Hanave Investment Co Pty Ltd and Anor.[9]
7. Therefore, harassing conduct of a landlord in demanding that a tenant remedy a breach, can constitute a breach of the tenant's right to quiet enjoyment of the property under s 65 of the RTA, but only if it is substantial.
8. The evidence about the workplace incident at the original hearing suggested that Ms Harradine had attended at Ms Harris' workplace specifically to harass her, and Ms Harradine would not otherwise have been present at the workplace. At the review hearing, it was agreed that approximately once a fortnight she and Ms Harris would be at a common place due to their work.
9. I accept the evidence of Ms Harradine at the review hearing that there was an unpleasant exchange on one of those fortnightly occasions, but the exchange was mutual. Accordingly, I am not prepared to make a finding that the incident at the workplace constituted a breach of Ms Harris' right to quiet enjoyment under s 65 of the RTA.
10. I consider that the issue of whether or not the incident of the phone call and missed calls from Mr Harradine constitute a breach of s 65 of the RTA, is finely balanced however, because of the language used during the phone call together with the threat in that phone call[10] and the fact that there were a number of missed calls late one night and into the early hours of the next morning, that is sufficient to constitute a breach of Ms Harris' rights under s 65 of the RTA.

Should an order be made for compensation in favour of Ms Harris for the breach of s 65 of the RTA?

1. The original Order directed Mr and Ms Harradine to pay compensation of $2,100.00 to Ms Harris. The original Order did not identify what part of that amount was attributable to the breach of s 65 of the RTA.
2. I note that in Kenny v Preen[11] in relation to the issue of compensation, Pearson LJ said that as the claim was based on a breach of contract only and the tenant had not suffered any actual pecuniary or material loss, then the amount of compensation should be minimal.
3. In this matter, I consider that Mr Harradine's breach of his obligation under s 65 of the RTA has been relatively minor. I consider that compensation of $100.00 is appropriate.
4. It is possible for a tenant to claim compensation for breach of their right to quiet enjoyment if the landlord's requirements for access to the property so that repairs can be carried out, is unreasonable.[12] I do not consider that is a relevant consideration in this matter.

1. I have found that Mr and Ms Harradine have acted in breach of the obligations under s 68 of the RTA and Mr Harradine has acted in breach of Ms Harris' right to quiet enjoyment under s 65 of the RTA. I have found that an amount of compensation of $2,500.00 would be appropriate for the breach of s 68 of the RTA and compensation of $100 would be appropriate for the breach of s 65 of the RTA. This is a total amount of $2,600.00. Mr and Ms Harradine have already paid compensation of $350.00 to Ms Harris and so I will deduct that amount. This leaves an amount of $2,250.00 to be paid by them. I will make an order to vary the original Order accordingly.

1. The Tribunal grants leave to apply for internal review.

1. I vary the order of the Tribunal made on Wednesday 25 May 2022 by deleting order 1 and substituting the following orders instead:
   1. The landlords must pay to the tenant the sum of $2,250.00. This must be done by crediting the rent record forthwith and the landlords must provide the tenant with a copy of the rent record documenting the credit within seven days of the date of this order.

[2] In her submissions, Ms Harris has suggested that she should be entitled to compensation from 8 December 2021.

[3] And obviously a report had been made before then which resulted in the attendance of the tradesperson on 17 December 2021.

[4] Per Justice Parker's decision in Tronnolone v Edwards & Bryan [2016] SACAT 27.

[5] This was the approach taken in Varricchio v Wentzel and confirmed by Parker J in Tronnolone v Edwards & Bryan [17].

[6] Southwark London Borough Council v Tanner (2001) 1 AC; McC v Director of Housing [2009] VCAT 2.

[7] [1962] EWCA Civ 2; [1963] 1 QB 499.

[8] [1999] UKHL 40; [1999] 3 WLR 939.

1. [9] [2002] NSWSC 304 - that case involved the erection of hoarding outside a shop which resulted in the shop owner suffering from reduced custom due to a lack of visibility and the dim light in the shop.

[10] In the original hearing, Ms Harris said that Mr Harradine said she need to "fucking move out" and "if the place was shut down, it would be the last thing I do".

[11] [1962] EWCA Civ 2; [1963] 1 QB 499.

[12] Worrall v Commissioner for Housing ACT [2002] FCAFC 127.