Kneipp v NSW Land and Housing Corporation

Procedural history

1. The application was first listed by AVL in a Group List for Conciliation and Hearing by the Tribunal, differently constituted, on 20 May 2022. Mr Kneipp attended that listing of the application. The landlord also attended by one of its Senior Client Service Officers, Ms Ratnabala. In accordance with the Tribunal's usual practice where both parties are present in person at the first listing of an application the Tribunal attempted to resolve the dispute by conciliation. However, those efforts were not successful. Consequently, the matter was adjourned to a Special Fixture Hearing and directions were given to the parties for the filing and exchange of the documentary evidence that they intended to rely on at that hearing.
2. The tenant subsequently issues Summons on NSW Police and the landlord to produce documents relevant to this dispute. As at the date of the hearing, both Summons had been complied with.

Hearing and Evidence

1. The tenant filed three bundles of documents on 10 May 2022, 3 June 2022 and 23 June 2022 which were marked Exhibits A1 to A3 respectively. He relied upon those documents and the documents produced under Summons to NSW Police (marked Exhibit A4) and NSW Land and Housing Corporation (marked Exhibit A5). The landlord filed a single bundle of documents on 15 July 2022, which was marked Exhibit R1.
2. The hearing was conducted by AVL in accordance with NCAT's COVID-19 Revised Hearing Procedure. Mr Kneipp attended in person and gave oral evidence under affirmation. Ms Lawrence, a Senior Client Service Officer of the landlord, attended on its behalf and gave oral evidence under oath. The parties had the opportunity to present their respective cases, to ask each other questions, and to make final submissions to the Tribunal.

Material Facts

1. Mr Kneipp is a tenant of the NSW Land and Housing Corporation under a residential tenancy agreement made on 1 October 2001. By operation of s 6 this agreement is now a social housing tenancy agreement within the meaning of Part 7 of the Act (the agreement).
2. The agreement includes the following clause in relation to the tenant's right to quiet enjoyment: 6. The landlord agrees: 6.1 that the tenant will have quiet enjoyment of the residential premises without interruption by the landlord or any person claiming by, though or under the landlord or having superior title to that of the landlord; and 6.2 that the landlord or the landlord's agent will not interfere, or cause or permit interference, with the reasonable peace, comfort or privacy of the tenant in using the premises.
3. The rented premises is an apartment in a residential block in Woolloomooloo owned by the NSW Land and Housing Corporation. It is a secure building that is accessible by a swipe card and intercom. It contains six apartments over three levels, which are accessible via an internal staircase. Each apartment is subject to a residential tenancy in which the NSW Land and Housing Corporation is landlord.
4. The Department of Communities and Justice (DCJ) administers NSW Land and Housing Corporation's social housing tenancies. I take judicial notice that DCJ has established interagency agreements with various agencies including NSW Health and NSW Police to assist it in the provision of tenancy services. These interagency agreements traverse various matters but for present purposes it is sufficient to note that they permit interagency referral for mental health and substance dependence services, and the sharing of information held by NSW Police in relation to its social housing premises and occupants of those premises. DCJ has also developed various policies for the management of its social housing tenancies including its Good Neighbour Policy and its Sustaining Tenancies Policy. In very broad terms these policies are directed towards the management of antisocial behaviour and tenancies that are at risk.
5. Although neither party put these interagency agreements and policies into evidence, it is not controversial that they exist, and they are frequently referred to in social housing proceedings before the Tribunal. Section 38(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) provides that the Tribunal is not bound by the rules of evidence and may inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice. Having regard to these public policy documents could not give rise to any procedural unfairness to the parties.
6. Sometime in 2019 which is not in evidence a tenant moved into apartment 2 on the ground level of the building (the neighbouring tenant). Apartment 2 is immediately in front of the hallway that is the exit/entry of the building. It is immediately adjacent to the bottom of the stairwell that leads up to level 2 and 3 of the building.
7. Mr Kneipp contends that commencing from 2020 up until recently the neighbouring tenant has engaged in seriously antisocial conduct that constitutes a breach of his quiet enjoyment of his rented premises. Mr Kneipp is not presently exposed to this conduct because the neighbouring tenant is incarcerated but fears this conduct will resume if the neighbouring tenant returns to apartment 2 upon his release from custody.
8. The conduct Mr Kneipp complains about may be summarised as follows: 1. He believes the neighbouring tenant has been dealing drugs from the premises through a security door he has installed over his front door. He contends this results in around 20 visits to the premises each day by people intending to purchase drugs. He contends that sometimes the neighbouring tenant's visitors stay sitting in the stairwell for extended periods of time causing obstruction and making noise and leaving rubbish. He contends that there have been instances when he or his guests have been verbally abused by the neighbouring tenant's visitors without provocation, and that there was one instance where he and a family member were menaced to provide money. He contends that the neighbouring tenant frequently props open the front security door to allow his visitors to enter without using the intercom, compromising building security. He contends that many of the neighbouring tenant's visitors failed to wear face masks to protect against the transmission of COVID-19 during the period this was required by Public Health Orders. He believes he contracted COVID-19 in this way. 2. The neighbouring tenant deliberately creates noise nuisance to distress other tenants in the building. This includes frequently using a leaf blower in the internal common area of the building, revving a motor bike in his apartment with the door open and in the hallway at the bottom of the stairwell. It also includes playing loud music with speakers placed at his open front door directed towards the stairwell, which is so loud it has reached 80dB (as measured by the tenant using an App on his mobile phone) and caused pictures and other items to vibrate in the tenant's apartment two levels up. It also includes repetitive door slamming, yelling and loud conversations with his visitors, banging on the doors and windows of other tenants from the street, and repeated ringing other tenant's intercoms so as to disturb them. 3. The neighbouring tenant allows smoke to escape from his lot which frequently causes the fire alarm at the top of the stairwell outside the tenant's apartment to activate. The revving of the motor bike in the neighbouring tenant's apartment and in the stairwell also causes petrol fumes and odour in the stairwell. 4. The neighbouring tenant has posted abusive graffiti outside the doors of other tenants and about the common property, to frighten, threaten and humiliate tenants. This includes: 1. In relation to a tenant of apartment 1, graffiti outside her front door with an arrow drawn pointing to the door: "fat slob where's my money u dog maggot" and "shit cunts live here". 2. In relation to the tenant of apartment 5, pinning a note to his door: "Neal and dog girl There's $1500 damage to my mates scooter Cash or blood? Time to pay" and writing on the wall beside the door to the apartment with an arrow pointing to the door "dumb arse koonies". 3. Writing his telephone number on the outer wall of the building. Also writing elsewhere on that wall "try enter & I will cave your head in". 1. The neighbouring tenant intimidating, threatening, abusing and harassing him and other tenants. This includes incidents of verbal abuse with foul language with last up to 30 minutes sometimes yelled from outside the building directed at tenants' windows above, spitting on Mr Kneipp and other tenants, obstruction of Mr Kneipp and other tenants from entering and leaving the building (which he detects by leaving his front door open with the security door locked), an implied threat of violence by placing a large kitchen knife outside Mr Kneipp's door, preventing or obstructing Mr Kneipp from using his motor vehicle by parking his two motor scooters immediately in front and behind it, and on one occasion beside the passenger door so it could not be opened, and making prank telephone calls to Mr Kneipp pretending to be a family member needing help. 2. The neighbouring tenant damaging Mr Kneipp's motor vehicle by deliberately kicking a soccer ball from the building entrance to hit it, and by throwing rocks from the building entrance to hit it. 3. The neighbouring tenant damaging the security door to the building by forcing it open and destroying its electronic opening function, such that other tenants could no longer use their swipe cards to enter. It is also contended that the neighbouring tenant has broken the windows of building by banging on them and throwing objects at them from the street. 4. The neighbouring tenant obstructing the common area entry/exit with his motor bike.
9. On 7 June 2021 the neighbouring tenant assaulted another tenant in the building by hitting him across the head with a baseball bat. He was subsequently charged by Police with an assault offence in relation to the incident and on 8 July 2022 was convicted of that offence and sentenced to 12 months imprisonment with a 5-month non-parole period.
10. On or about 3 May 2022 the neighbouring tenant was taken into custody and refused bail in relation to some other offence, the details of which are not in evidence after a Police search of apartment 2 on 28 April 2022. The tenant contends that the non-parole period thus runs from that date and that the neighbouring tenant may return to occupy apartment 2 by the end of this year.
11. In her oral evidence on behalf of the landlord, Ms Lawrence confirmed that the neighbouring tenant had not relinquished his tenancy as at the date of the hearing.
12. On 16 February 2022 the tenant obtained an Interim Apprehended Personal Violence Order (APVO) that restrains the neighbouring tenant from approaching him. A final order was made on 23 March 2022. He contends that since this order was issued the neighbouring tenant has breached it on three occasions, on 18 February 2022, 15 March 2022 and 19 March 2022. He contends that the neighbouring tenant has been charged with an offence in relation to each of those breaches and that the matter is listed before the Court for final hearing on 22 July 2022.
13. On 11 May 2021 the tenant made his first written complaint to DCJ about the neighbouring tenant's conduct, this course having been recommended to him by NSW Police. The complaint runs to four closely typed pages which include embedded links to time date annotated sound and video recordings. In the opening section of the complaint, the tenant states: I am writing on the suggestion of the police to ask you to investigate and remedy the antisocial behaviour of [the neighbouring tenant]… In the 20 years I have lived in this building I have never encountered a more antisocial neighbour, and on the police suggestion I have gathered a chronology of evidence … with my mobile phone and street parking security camera system installed last year on the advice of police after my car was vandalised. The date references of files of this chronology included below begin with the following date convention: YYMMDD_hhmm = YearMonthDay_hourminute
14. The complaint traverses:

• verbal abuse directed at the tenant and another tenant supported by sound recording files embedded into the letter of complaint,
• assault on another tenant and the note threatening violence pinned to the door of apartment 5 supported by a photograph the threatening note,
• an incident on 10 April 2020[21?] when the neighbouring tenant rang the tenant's doorbell and kicked his door at 10:45pm and then threatened him with violence alleging that his carer had stolen a backpack belonging to the neighbouring tenant,
• noise and air pollution of the stairwell by the neighbouring tenant,
• very early morning door slamming by the neighbouring tenant disturbing the tenant's sleep on 18 April 2021, followed by verbal abuse of the tenant by the neighbouring tenant when he was asked to stop, and then the malicious prolonged ringing of the tenant's doorbell, the latter part of the incident being supported by a video recording embedded into the complaint,
• noise nuisance generated by the neighbouring tenant in various ways which are supported by 27 sound recordings embedded into the complaint. I note that none of these sound recordings relate to an incident at 10:45pm on 28 April 2021,
• fire risk to residents of the block caused by the neighbouring tenant's installation of a security door,
• the neighbouring tenant jamming the building security door open.

1. The tenant was not contacted by DCJ in relation to his first complaint. He attempted to discuss the matter with the person he was told by DJC was the designated Client Service Officer for the complaint on 13 and 17 May 2021, but his calls were not taken, and his messages were not returned.
2. By letter from the DCJ delegate dated 15 October 2021 the tenant received notice of the outcome of his complaint, as follows: COMPLAINT OUTCOME This letter is about the complaint you lodged with the Department of Communities and Justice (DCJ) Housing that the tenant and/or occupants of [the neighbouring tenant's address] have engaged in antisocial behaviour. … We have investigated your complaint by gathering additional information. At this time we are unable to substantiate the complaint. There is no evidence/insufficient evidence that the incident occurred. This means DCJ is unable to establish a breach of the tenancy agreement or the Residential Tenancies Act 2010, so we cannot take formal action. The tenant has been reminded that antisocial behaviour places their tenancy at risk and if any substantiated breaches occur, further action will be taken. We will continue to monitor the tenancy and take action on all substantiated incidents of antisocial behaviour. DCJ Housing has investigated and reported on this matter in accordance with its functions as an investigative agency under the Housing Act 2001, the Residential Tenancies Act 2010 and in accordance with the Privacy and Personal Information Protection Act 1998. …
3. On 17 June 2021 the City of Sydney held a Woolloomooloo Community Meeting which included representatives of various State government agencies and other services, including the DCJ. Part of the meeting permitted participants to speak directly with agency staff about "individual concerns". Mr Kneipp attended the meeting and spoke with a DCJ Client Service Office, Ms Willis. In particular, he discussed the neighbouring tenant's recent assault of another tenant with a baseball bat and reported that he and other tenants were frightened of the neighbouring tenant. On or about 13 July 2021 Ms Willis contacted the tenant by telephone to discuss the matter further. This led to the tenant submitting a second written complaint about the neighbouring tenant's anti-social behaviour directly to Ms Willis by email later that day (the tenant's second complaint).
4. The second complaint traverses the following issues:

• The neighbouring tenant's violent assault of another tenant on 7 June 2021,
• The neighbouring tenant's alleged drug dealing from his apartment,
• The risk to the tenant and other tenants posed by the neighbouring tenant's visitors who frequently did not wear masks to protect against the transmission of COVID-19 and otherwise failed to comply with Public Health Orders in force at that time, and stayed for prolonged periods on the stairwell,
• The neighbouring tenant and his visitors compromising building security by jamming the front door open,
• The neighbouring tenant's intimidation and obstruction of other tenants entering and leaving the building,
• Other intimidation and threats made by the neighbouring tenant to the tenant and other tenants, including by leaving a large knife outside the tenant's front door and abusive graffiti directed at tenants,
• Damage of building property, including breaking windows and doors of other tenants, and defacing of the building with graffiti, and
• The neighbouring tenant causing severe noise nuisance.

1. Embedded into this complaint are links to what appears to be more than 100 video and sound recordings the neighbouring tenant's alleged antisocial behaviour. I note that none of these files appears to refer to any incident on 28 April 2021.
2. 27 On 26 August 2021 Mr Kneipp sent an email addressed to a Kings Cross Police Officer and Ms Willis appealing to them to intervene to address the neighbouring tenant's antisocial behaviour. The email again traverses the 7 June 2021 assault, the abusive and threatening graffiti directed at other tenants, the neighbouring tenant's threats of violence against the tenant and his intimidation of other tenants, the neighbouring tenant's noise nuisance, and the neighbouring tenant's visitors not observing COVID-19 public health requirements. Mr Kneipp received no response to that email.
3. DCJ responded to the tenant's second complaint by letter dated 21 October 2021. That letter advised that the tenant's complaints had not been substantiated. It is in the same terms as DCJ's letter dated 15 October 2021.
4. A new DJC Client Service Officer for the tenancies in the building was appointed at some time which is not in evidence. She contacted Mr Kneipp on 3 February 2022. This resulted in Mr Kneipp writing to her by email later that day reiterating his complaints about the neighbouring tenant's antisocial behaviour and forwarding her a copy of his first complaint. He also provided the additional information that he had recently applied for an APVO to protect him from the neighbouring tenant.
5. Mr Kneipp contacted the Officer again by telephone on 10 February 2022 to discuss his email but was told by the Officer that she had not read it. He received no other response to the email. On 19 April 2022 Mr Kneipp attempted to reach the Officer again to advise that he had obtained a Final APVO. She did not take his call and has not returned his message.
6. The entirety of the landlord's evidence in response to the application is found in two pages. The first page is a photograph of the security door the neighbouring tenant has installed over his front door above which is the following statement: 1. The gate that applicant wans Land and Housing Corporation (LAHC) to remove is a front security door that tenant has installed and that cannot be removed by LAHC. The tenant can put up a security door for his own security. The second page contains only the following statement: 2. Antisocial behaviour complaint DCJ investigated the matter in regards to the complaint of antisocial behaviour of the tenant from [address of neighbouring tenant] however the matter was considered not substantiated on 14 October 2021.
7. The Summons issued by Mr Kneipp to NSW Land and Housing Corporation sought production of the following documents: Documents being the respondent's records concerning [name and address of neighbouring tenant] as tenant of the respondent since his residence at the stated address in 2019 to the present, in relation to: 1) [neighbouring tenant's name] grievous physical assault and bodily harm of [name and address of tenant of apartment 5] on 7 June 2021; 2) [neighbouring tenant's name] misbehaviour towards any residents and neighbours of [building address for the six tenancies]

Jurisdiction

1. There is no issue that the Tribunal has jurisdiction to hear and determine this application, as amended, according to the provisions of the Residential Tenancies Act 2010 (NSW).
2. The amended application concerns an alleged breach of the social housing agreement that subsists between the tenant and the landlord. An application in relation to an alleged breach of an agreement must be made within three months of the applicant becoming aware of the breach: s 190(1) of the Act and Regulation 39(9) of the Residential Tenancies Regulation 2019 (NSW).
3. The alleged breach in this case concerns a continuing obligation and continuing inaction or insufficient action by the landlord up to the date of the application. The application has therefore been made within the period permitted for such an application: Larking v Great Western (Nepean) Gravel Ltd (In Liq) [1940] HCA 37; (1940) CLR 221 at 236; applied in Roberts v NSW Aboriginal Housing Office [2017] NSWCATAP 9 at [91].

Applicable law

1. Section 6 explains the operation of the Act in relation to residential tenancy agreements that were made prior to the 2010 Act coming into force. It provides: 6 Act applies to existing and future residential tenancy agreements This Act applies to residential tenancy agreements in respect of residential premises whether made before or after the commencement of this section.
2. Section 50 codifies a tenant's right to quiet enjoyment of rented premises. It provides: 50 Tenant's right to quiet enjoyment (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 landlord or having superior title (such as a head landlord) to that of the landlord. (2) A landlord or a landlord's agent must not interfere with, or cause or permit any interference with, the reasonable peace, comfort or privacy of the tenant in using the residential premises. (3) A landlord or landlord's agent must take all reasonable steps to ensure that the landlord's other neighbouring tenants do not interfere with the reasonable peace, comfort or privacy of the tenant in using the residential premises. (4) This section is a term of every residential tenancy agreement.
3. The definition of "residential premises" that is applicable to s 50 is found in s 3 of the Act. It is as follows: "residential premises" means any premises or part of premises (including any land occupied with the premises) used or intended to be used as a residence.
4. Section 51 sets out a tenant's obligation with respect to the use of premises. It relevantly provides: 51 Use of premises by tenant (1) A tenant must not do any of the following - (a) use the residential premises, or cause or permit the premises to be used, for any illegal purpose, (b) cause or permit a nuisance, (c) interfere, or cause or permit any interference, with the reasonable peace, comfort or privacy of any neighbour of the tenant, (d) Intentionally or negligently cause or permit any damage to the residential premises, … (4) In this section - "residential premises" includes everything provided with the residential premises (whether under the residential tenancy agreement or not) for use by the tenant. (5) This section is a term of every residential tenancy agreement.
5. Section 54 prescribes the liability of a tenant for the actions of others. It relevantly provides: 54 Liability of tenant for actions of others (1) A tenant is vicariously responsible to the landlord for any act or omission by any other person who is lawfully on the residential premises (other than a person who has a right of entry without the tenant's consent) that would have been a breach of the residential tenancy agreement if it had been an act or omission by the tenant. … (2) This section is a term of every residential tenancy agreement.
6. The order making power of the Tribunal that are relevant to this application are found in s 187 of the Act, which relevantly provides: 187 Orders that may be made by Tribunal (1) The Tribunal may, on application by a landlord or tenant or other person under this Act, or in any proceedings under this Act, make one or more of the following orders - … (b) an order that requires an action in performance of a residential tenancy agreement, … (c) an order for compensation, … (h) an order directing a landlord, landlord's agent or tenant to comply with a requirement of this Act or the regulations (i) a termination order or an order for the possession of premises. …
7. The Tribunal's power, when exercising functions allocated to the Consumer and Commercial Division, to renew proceedings that have been heard and determined is found in clause 8 of Schedule 4 of the NCAT Act. That clause relevantly provides: 8 Renewal of proceedings in respect of certain division decisions (1) If the Tribunal makes an order in the exercise of a Division function in proceedings, the Tribunal may, when the order is made or later, give leave to the person in whose favour the order is made to renew the proceedings if the order is not complied with within the period specified by the Tribunal. (2) If an order has not been complied with within the period specified by the Tribunal the person in whose favour the order was made may renew the proceedings to which the order relates by lodging a notice with the Tribunal, within 12 months after the end of the period, stating the order has not been complied with. … (4) When proceedings have been renewed in accordance with this clause, the Tribunal - (a) may make any other appropriate order under this Act or enabling legislation as it could have made when the matter was originally determined, or (b) may refuse to make such an order.

Consideration

1. To determine the outcome of this application the Tribunal must pose and answer the following questions: 1. What is the scope of the landlord's obligation to protect the tenant's quiet enjoyment? 2. Has the neighbouring tenant interfered with the tenant's quiet enjoyment of the rented premises? 3. If the answer to (b) is "yes", has the landlord taken "all reasonable steps" to prevent this? 4. If the answer to (c) is "no", is this failure sufficiently serious to constitute a breach of the residential tenancy agreement by the landlord? 5. If the answer to (d) is "yes", is the tenant entitled to an order that will require the landlord to perform this obligation with respect to the neighbouring tenant?
2. The residential tenancy agreement signed by the parties in October 2001 did not contain, in clause 6 or otherwise, any landlord obligation in relation to interference with quiet enjoyment caused by the landlord's neighbouring tenants.
3. However, by operation of s 6 of the RT Act that agreement is varied to insert the obligation contained in s 50(3) which is a term of every residential tenancy agreement by operation of s 50(4). The landlord therefore has an obligation to ensure that its neighbouring tenants do not interfere with the tenant's quiet enjoyment of his rented premises.
4. In this case there is no issue that the neighbouring tenant is a tenant of the landlord.
5. Quiet enjoyment is the tenant's "reasonable peace, comfort and privacy in using the residential premises". Three aspects of this concept are to be noted.
6. First, the concept does not contemplate an absolute entitlement to peace, comfort, and privacy, but a relative one, ascertained by a reasonableness standard. Mere inconvenience is not sufficient to constitute an interference, there must be a substantial interference: Southwark London Borough Council v Tanner [2001] 1 AC 1.
7. The concept also operates in a real-world context having regard to contemporary standards of living. In this case the tenant lives in a community of tenanted properties. It is reasonable for there to be a degree of tolerance and give and take in relation to the behaviour of neighbours in such an environment: McC v Director of Housing [2009] VCAT 2748.
8. I also consider that the application of the reasonableness test must include consideration of the landlord's function, as a social housing provider, to provide accommodation for socially vulnerable tenants who may have high social need. I consider it relevant that the exercise of this function will sometimes include the protection of socially vulnerable tenants from homelessness and the provision of accommodation that provides a foundation for recovery, rehabilitation, and social reintegration. I accept that this will sometimes require the balancing of the needs of tenants in a communal living environment.
9. Second, the concept contains a location requirement. The interference must relate to the tenant's use of the residential premises. It does not relate to conduct between neighbouring tenants that occurs in another location.
10. Third, insofar as s 50(3) is concerned, the concept involves a status requirement. The interference must be by a neighbouring tenant, not some other person, and involve the tenant, not some other person.
11. Dealing with the location requirement first, the residential premises is defined in s 3 to include not only the rented premises in relation to which the tenant has exclusive possession, but also any common property that is shared with other tenants. In this case, the common property the tenant has the use of as part of the residential premises is the building entrance door, the hallway from that door leading the stairwell, and the staircase and upper landings.
12. One of the tenant's complaints about the neighbouring tenant concerns him allegedly parking his motorbikes immediately in front of and behind the tenant's motor vehicle, and in another case beside the passenger door, to prevent him from using it. That alleged conduct occurred on a public street in front of the building. The public street is not part of the residential premises. The neighbouring tenant's alleged conduct thus involved an interference with the tenant's use of the public street, not the residential premises.
13. Another of the tenant's complaints concerns the neighbouring tenant allegedly kicking a soccer ball and throwing rocks at his motor vehicle parked on the public street outside the building. This is similarly an alleged interference with the tenant's use of the public street, not the residential premises. I note that it is alleged that the rocks were thrown, and the soccer ball kicked, from the hallway of the building near the front door. If so, this involved the 'use' of the common property by the neighbouring tenant, but that concept is not equivalent to the concept of 'interference'. The 'interference' was with the tenant's ability to park his car safely on a public street, not with his use of the hallway and front door.
14. These aside, I am satisfied that all the tenant's other complaints concern his use of the residential premises, being his apartment and the common property.
15. Turning next to the status requirement, several of the tenant's complaints concern the proved or alleged conduct of the neighbouring tenant towards tenants other than himself. That conduct cannot constitute an interference with the tenant's quiet enjoyment of the premises unless it also has some form of substantial impact on him in his use of the rented premises and common areas.
16. The neighbouring tenant's assault of the tenant of apartment 5, which is proven on the criminal standard, did not directly interfere with tenant's quiet enjoyment of his rented premises. Nevertheless, I accept that it was an indirect substantial interference with his peace and comfort. I accept that it caused the tenant to fear for his own safety in the use of his apartment and the common property. It gave rise to a reasonable apprehension of violence in a context where the tenant had also been threatened with violence by the neighbouring tenant.
17. Similarly, while some graffiti in the common areas, the door and window banging, and the yelling of abuse from the street to building's street facing windows was (as alleged) directed to other tenants, it also constituted a substantial interference with the tenant's quiet enjoyment because it reasonably caused him to fear for his own safety in his rented premises and the common property. It also defaced the common property in a substantially distressing way and created noise nuisance that interfered with the tenant's use of his rented premises.
18. Some of the tenant's allegations concern the alleged conduct of persons other than the neighbouring tenant who were invited onto the common property by the neighbouring tenant. It needs to be considered whether the alleged conduct of those persons can constitute an inference with the tenant's quiet enjoyment "by" the neighbouring tenant.
19. In this respect, it is notable that s 50(3) does not contain the words of extension "cause or permit" which are found in s 50(2). However, the foundation for the landlord obligation imposed by s 50(3) is the tenant obligation to the landlord imposed by s 51(1)(c). That obligation does contain these words of extension. Additionally, a tenant's liability for the performance of that obligation is regulated by s 54 which makes a tenant vicariously liable for the conduct of others lawfully on the residential premises. In these ways I am satisfied that the conduct of those persons who are on the common property by invitation of the neighbouring tenant can constitute an interference with the tenant's quiet enjoyment.
20. In my consideration up to this point I have discussed the tenant's complaints on the basis that they are allegations, excepting the neighbouring tenant's assault of the tenant of apartment 5, which has been proven to the criminal standard in the Local Court. It is now necessary to determine if the tenant has established to the civil standard of proof conduct by the neighbouring tenant that constitutes a substantial inference with his peace, comfort, and privacy in the use of his rented premises. I am comfortably satisfied that he has done so.
21. In this respect the tenant's evidence as to this interference is essentially uncontested. The landlord relies upon its complaint outcome letters of 15 and 21 October 2021 which state that the tenant's first and second complaints were not substantiated. However, the only evidence of any investigation undertaken by the landlord in relation to those complaints which is in evidence is the interview of the neighbouring tenant on 8 October 2021 in relation to a noise complaint that is stated to have occurred on 28 April 2021 at 10:45pm. I cannot find reference to such an incident in either the tenant's first or second complaints. It is therefore unsurprising that this specific incident was found not to have proved. The tenant did not make this allegation. Even if I have overlooked the reference, it would only amount to one of many instances of noise nuisance alleged by the tenant, and noise nuisance was only one of the serious allegations made by the tenant.
22. The landlord has filed no affidavit or other evidence of any investigation carried out in response to the tenant's complaints, other than in relation to the incident of noise nuisance on 28 April 2021 at 10:45pm. No evidence of any broader investigation has been produced under Summons. There are therefore no findings of any such investigation to cast doubt on the tenant's version of events. He has given his evidence under affirmation. His evidence was internally consistent and consistent with objective facts (the neighbouring tenant's conviction for assault, the Final APVO the tenant has obtained in the Local Court, and the NSW Police raid on the neighbouring tenant's apartment).
23. The tenant was subject to cross-examination by Ms Lawrence, but that cross examination was not helpful to the landlord's case, other than in relation to establishing that the complaints relating to the tenant's car concerned an interference with his use of a public street rather than the rented premises. It was put to the tenant that the landlord had not received complaints from any other tenant. However, in circumstances where one tenant had been the victim of a serious assault by the neighbouring tenant, and where the neighbouring tenant had been charged with three breaches of an APVO protecting the tenant which were presently before the Local Court, I found the tenant's explanation of this, which was that other tenants were too fearful to complain, compelling.
24. It was also put to the tenant that nothing has ever been raised with DCJ about the neighbouring tenant by Kings Cross Police at regular interagency meetings (Ms Lawrence stated she had been to every one of the meetings during the period concerned). I considered that question was passing strange for what it revealed about the inadequacy of DCJ's conduct. Mr Kneipp's first and second complaints set out in detail his dealings with NSW Police in relation to the neighbouring tenant, and they included allegations of serious criminal as well as antisocial conduct by the neighbouring tenant. In these circumstances one is left wondering why DCJ did not attempt to obtain information from NSW Police through these interagency meetings or by other means to properly investigate the tenant's complaints. The only evidence that DJC has sought information from NSW Police in relation to the neighbouring tenant is the Request for Information dated 5 July 2022 a copy of which was produced under Summons. This is obviously long after Mr Kneipp's complaints had been dismissed as unsubstantiated, and after he had instituted this proceeding.
25. I therefore find that the neighbouring tenant has substantially interfered with the tenant's use of his rented premises and the common property as follows: 1. by repeated episodes of verbal abuse directed towards the tenant though the door of his apartment, from the street directed to towards the tenant's window, and on the common property, 2. by repeated episodes of intimidation and harassment of the tenant in his use of the common property hallway and stairwell, by ringing his intercom, and kicking his door, 3. by repeated threats of violence towards the tenant, and by creating an apprehension of violence by his assault of another tenant and his threats of violence towards other tenants, 4. by repeated acts of severe noise nuisance, and 5. by damaging and defacing common property, by compromising the security of the building by propping open the building's security door, and allowing his invitees to occupy the common area for prolonged periods.
26. The next issue requiring consideration is whether the landlord has "taken all reasonable steps" to prevent the neighbouring tenant from interfering with the tenant's right to quiet enjoyment. This requires consideration, first, of the steps available to the landlord in the circumstances of the case, and second, consideration of the steps it has taken in fact. It is not necessary that the landlord has taken every step that is theoretically available to it. The obligation is limited to "all" of those that are "reasonable" in the circumstances. Nevertheless, this remains a substantial obligation.
27. I am satisfied that the steps available to the landlord included the following: 1. Administrative action in accordance its Good Neighbour Policy; 2. Administrative action in accordance with its Sustaining Tenancies Policy; 3. Administrative interagency action in accordance with its interagency agreement with NSW Health to any extent that the neighbouring tenant's conduct was associated with a mental health condition or substance dependence, 4. Administrative interagency action in accordance with its interagency agreement with NSW Police, and the Kings Cross Local Command interagency in particular, 5. Legal action under the Residential Tenancies Act 2010 (NSW) to obtain orders for specific performance by the neighbouring tenant of his obligations in relation to the quiet enjoyment of other tenants or for termination of the neighbouring tenant's residential tenancy agreement for breach of that obligation. I note that the evidence discloses several other potential bases upon which such orders could sought, including the use of premises for an illegal purpose and the causing of nuisance.
28. The evidence establishes that before Mr Kneipp made this application, the only step the landlord has taken was to invite the neighbouring tenant to an interview to discuss an incident that does not appear to have been the subject of a complaint by Mr Kneipp. That interview was conducted in apparent reliance upon the Good Neighbour Policy. No contravention of the policy was substantiated, and the neighbouring tenant was issued a complaint finalisation letter thanking him for meeting his responsibilities as a tenant. Such an outcome is an absurdity having regard to the scope of Mr Kneipp's complaints.
29. There is no evidence of any other action being taken, whatsoever, in relation to Mr Kneipp's complaints about the breach of his quiet enjoyment by the neighbouring tenant. I conclude on the evidence before me that these complaints have been ignored, or to the extent that they have not, they have been dismissed without any reasonable consideration. That is a startling conclusion to reach but it is one that is wholly unavoidable having regard not only to the evidence that the landlord has voluntarily produced in response to the application in accordance with the Tribunal's directions for the filing of evidence, but also having regard to that which it has produced under compulsion in response to the tenant's Summons.
30. Since the tenant's application was made, the landlord has issued NSW Police with a request for information concerning the neighbouring tenant and his address. That is a reasonable step, but viewed longitudinally, it remains a wholly inadequate response, and the landlord's conduct to date does not provide promise that any information received will be properly assessed, and if appropriate, acted on.
31. For the foregoing reasons, I am comfortably satisfied that the landlord has breached its obligation to the tenant to take all reasonable steps to ensure that the neighbouring tenant does not breach his quiet enjoyment. It has not taken any satisfactory step to prevent this. That breach is, in the circumstances I have outlined above, egregious. There can be no doubt that the tenant is entitled to an order that will require specific performance of that obligation by the landlord.
32. I will grant the tenant leave to renew this application if the landlord persists in its breach of s 50(3). The remedy that is potentially available on any such renewal is an order for compensation for non-economic loss arising from the breach (distress and disappointment).
33. Apart from that, the tenant may be entitled to institute proceedings for contempt of a Tribunal order, but that would need to be subject of a separate application.

Costs

1. At the end of the hearing the tenant expressed an intention, if he was successful, in applying for an order for his costs of the proceedings. I have therefore made orders to facilitate this.
2. Before any application for costs is made, the party making the application must have regard to the costs provisions found in s 60(1), (2) and (3) of the NCAT Act and the Consumer and Commercial Division's Costs Guideline (August 2017). Submissions in support of, and in reply to, any costs application must address the relevant considerations identified in s 60 and the Guideline.

Orders

1. For the foregoing reasons I make the following orders: 1. The landlord, NSW Land and Housing Corporation must comply with the terms of the social housing agreement by: - to take all reasonable steps to ensure the landlord's other neighbouring tenants do not interfere with the reasonable peace, comfort, or privacy of the tenant in using the residential premises. 1. If order 1 is not complied with, the tenant may renew these proceedings at any time before 20 July 2023. 2. Any application for costs is to be filed with the Tribunal and served on the other party by 10 August 2022. The application is to include any evidence and supporting submissions limited to 5 A4 pages in not less than 11point font. 3. Any reply to any application for costs is to be filed with the Tribunal and served on the other party by 24 August 2022. Any reply is to include any supporting submissions limited to 5 A4 pages in not less than 11-point font. 4. The Tribunal proposes to dispense with a hearing in relation to any application for costs. The parties are to include any submission they wish to make in relation to this proposed order in any application or reply to an application for costs. 5. Any costs application must set out the grounds upon which such an order should be made having regard to s 60(1), (2) and (3) of the Civil and Administrative Tribunal Act 2013 (NSW).

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            I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.

Registrar 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: 04 October 2023