What happened

J McC and AF lived in neighbouring units rented from the Director of Housing. The judgment records that they had both been tenants there for many years and that conflict between them had continued for about twelve years. The Director had offered J McC alternative accommodation four times between 2004 and 2007. She said she did not accept those offers because the properties were unsuitable.

On 17 September 2008, VCAT made an order after J McC sought a compliance order. It found that she had given the landlord a breach of duty notice under s 208 of the Residential Tenancies Act 1997 alleging breach of s 67, and ordered the landlord to take “all reasonable steps to ensure that the tenant has quiet enjoyment of the rented premises at all times”. The order also required the landlord to refrain from a similar breach. It adjourned the proceeding to a date no later than 18 September 2009 and permitted renewal, with a compensation claim for non-compliance.

The later proceeding concerned whether the Director had complied with that order. The Tribunal accepted J McC's evidence that she contacted the Director approximately five or six weeks after the order about problems including noise from AF's car. It was not disputed that no further action was taken in response. The Director also received a letter from J McC dated 3 June 2009, which described alleged conduct by AF and asked that the information be put on her file. The Director filed the letter and sent an acknowledgement but did not contact her to clarify it.

J McC provided notes of incidents between July and October 2009. Her complaints included noise from an aviary and car, alleged swearing and gestures, floodlights, laughter and police visits. The Tribunal preferred her account of events over AF's denials, while distinguishing between events it accepted and her interpretation of them. It found repeated excessive noise from AF's car to be a breach of quiet enjoyment. It did not find the bird noise, lights or other alleged harassment to be established breaches.

The order records that the landlord had not complied with the earlier order and required payment of $196. The Tribunal calculated this as $14 per week for 14 weeks, from 3 July to 10 October 2009.

Why the court decided this way

The central question was not simply whether the Director caused the interference itself. It was whether the landlord had fulfilled the specific obligation imposed by the earlier VCAT order. The Tribunal framed the test as whether the Director had taken all reasonable steps to ensure quiet enjoyment. It referred to the approach set out in Mr S v Director of Housing (Residential Tenancies) [2009] VCAT 2615: reasonableness is a matter of fact assessed in all the circumstances, objectively, and a useful question is what steps the Director could have taken but did not take.

The Tribunal identified the history as important context. The Director knew the tenants had experienced an extended conflict and had offered alternative accommodation before the compliance order. The Member considered it foreseeable that further difficulties might arise. The Director's knowledge did not make every later allegation true, but it informed what response could reasonably be expected after the order.

The accepted contact in October or November 2008 was significant. J McC said she reported ongoing issues, including noise, and that an officer had responded about the noise as a police matter. The Director's file contained no record of the contact. The Tribunal nevertheless accepted that it occurred, relying on J McC's detailed evidence and corroboration from her advocate that an officer had spoken with her. The Director did not seek an adjournment to call the officer. The judgment says no further action was taken after the complaint.

The June 2009 letter was a separate reason for finding the response inadequate. The Tribunal acknowledged that its listed allegations appeared, on their face, tangential to the tenancy and that it asked only for the information to be placed on file. But the known history and the distress conveyed in the letter made a literal response inadequate. In the Member's view, a telephone call to clarify whether the incidents, or other events, were being raised as interference with quiet enjoyment was a reasonable step. Merely filing the letter and acknowledging it by mail did not satisfy the order in those circumstances.

The Tribunal then examined what interference had actually occurred. It regarded quiet enjoyment as more than an absolute promise that a tenant would never experience noise or annoyance. The interference had to be unreasonable or significant and more than mere inconvenience. It rejected the aviary noise as a breach because council had inspected it in 2007 and taken no action, and there was no evidence that it had increased after September 2008. It considered the use of lights reasonable. It also found insufficient evidence that the police visits, laughter, swearing or other alleged conduct amounted to significant interference by AF.

By contrast, the Tribunal accepted that there had been numerous incidents of excessive car noise. J McC had detailed notes, an independent witness corroborated an incident of loud music and engine revving, and the Tribunal was not materially persuaded that the witness evidence had been damaged in cross-examination. On that basis, it found the noise sufficiently significant to breach quiet enjoyment.

Finally, the Tribunal separated proof of non-compliance from the amount of compensation. It rejected most claimed expenses because their connection with the Director's failure was insufficiently established. It did, however, allow a modest rental-based amount for the proven period of significant and regular noise.

Before and after state of the law

The judgment dealt with a particular compliance order, rather than deciding a general application about compliance with a statutory duty provision. It expressly cautioned that its analysis concerned the landlord's obligation to comply with this Tribunal order. The order's wording, especially “all reasonable steps” and “to ensure”, was central to the result.

Before this decision, the text of the order had already placed a positive obligation on the Director. The Tribunal used earlier authorities to explain how to assess reasonable steps and landlord responsibility when one tenant's conduct interferes with another tenant. It referred to Reardon v Ministry of Housing, where the Victorian Supreme Court discussed the landlord's obligation under a predecessor provision when it knew of third-party interference and could act. It also discussed Department of Housing v Consumer, Trader and Tenancy Tribunal and Anor, a New South Wales decision concerning different statutory language, including “permit any interference”. Those authorities formed part of the reasoning context, but the Member's decision rested on the specific terms of the VCAT order and the facts before the Tribunal.

The judgment's stated approach after the decision is correspondingly narrow. It shows that, in this case, an order to take all reasonable steps was not met by passive file management when the landlord knew of a persistent dispute and received information potentially indicating further interference. It also shows that “quiet enjoyment” did not mean freedom from every annoyance: the Tribunal required unreasonable or significant interference beyond inconvenience. The decision does not establish that every complaint requires the same response or that a landlord is responsible for every neighbour dispute. Its reasoning tied the required response to the history, notice, evidence, and particular order.

The award also illustrates that a finding of non-compliance did not make every claimed expense recoverable. The Tribunal assessed the link between each amount and the breach. It rejected expenses it considered attributable to broader or longer-term distress, application costs, or anxiety not sufficiently sheeted home to the Director's non-compliance. Compensation was confined to a period and form of disruption the Tribunal found proved.

Key passages with plain-English translation

The operative order required “all reasonable steps to ensure that the tenant has quiet enjoyment of the rented premises at all times”. In plain English, the landlord had to do more than avoid personally disturbing the tenant. It had to take reasonable steps, in the circumstances, to secure the quiet enjoyment specified by the order.

The Tribunal described reasonable steps as an objective, factual inquiry and asked what the Director could have done but did not do. This approach prevents the landlord's own view of its response from being the only measure. The history and information available to it mattered.

The Member said quiet enjoyment was not an absolute term and required interference that was “unreasonable or significant in some way and more than inconvenience”. In practical terms, ordinary neighbour noise or annoyance was not enough by itself. The Tribunal applied that distinction by rejecting the aviary noise and lights as breaches, while accepting repeated excessive car noise.

The judgment emphasised that the order said “all” reasonable steps, not “some” or “various”. That observation underscores the particular strength of the order's language. The finding did not mean that a landlord must guarantee a perfect result in every situation; the decision considered whether the steps taken were reasonable in the circumstances and found the Director's limited response insufficient.

For compensation, the Tribunal said it would assess 10 per cent of rent, or $14 a week, for the 14 weeks covered by the notes, from 3 July to 10 October 2009. The arithmetic produced $196. This was an assessment tied to the proven excessive-noise period, not an allowance of all the financial and personal consequences J McC claimed.

What fact patterns trigger this precedent

The reasoning is most relevant where a tenant relies on a specific Tribunal order requiring a landlord to take all reasonable steps to protect quiet enjoyment, and then alleges the landlord did not respond adequately to further interference. Facts resembling those in this judgment include a landlord's awareness of an established conflict, a prior compliance order, a further complaint after the order, and a response limited to recording or acknowledging the complaint without investigating or clarifying it.

The case also provides an example of how evidence of interference may be assessed. J McC's contemporaneous notes and some independent corroboration supported her account of excessive vehicle noise. Conversely, the Tribunal did not infer that every unpleasant event was harassment or a breach. It distinguished between the occurrence of an event and the tenant's interpretation of its purpose or significance.

The decision may also be relevant where a claim includes several types of interference. It did not treat all allegations as one undifferentiated course of conduct. It separately considered the aviary, car noise, lights, police visits and other alleged behaviour, applying the significance threshold to each category and the evidence available.

Its limits matter. This was not a general ruling on every landlord's obligations in every tenancy dispute. The Member expressly distinguished an application concerning the landlord's statutory duty from the proceeding about compliance with this particular order. The particular order's language, the landlord's knowledge and the evidence of repeated noise were important features of the result.

How later courts have treated it

The supplied judgment does not refer to decisions made after 17 December 2009 or describe any subsequent treatment of McC v Director of Housing. On the material provided, it is not possible to say whether later courts or tribunals followed, distinguished, approved or criticised this decision. The decision itself refers to Mr S v Director of Housing (Residential Tenancies) [2009] VCAT 2615 on the assessment of reasonable steps, and discusses Reardon v Ministry of Housing and Department of Housing v Consumer, Trader and Tenancy Tribunal and Anor in relation to landlord knowledge and action. Those are authorities considered by this Tribunal, not evidence of later treatment of McC.

Still-open questions

The reasons do not prescribe a fixed response that a landlord must take whenever a tenant complains. They do not specify an exhaustive list of “reasonable steps”, nor set a general procedural standard for investigating complaints. The result instead turns on the Director's known history with these tenants, the terms of the order, the accepted report of further noise and the lack of substantive follow-up.

The judgment also does not define a numerical threshold for when noise becomes unreasonable or significant. It found the particular repeated car noise to qualify, while finding the aviary noise and lights did not. The decision therefore leaves the assessment dependent on the nature, frequency, evidence and context of the interference.

A further question is how far the result would extend to orders with different wording. The Member relied expressly on “all reasonable steps” and “to ensure”, and stated that the analysis concerned compliance with an order rather than a direct statutory-duty application. The reasons do not determine whether the same responsibility would arise under differently worded orders or on a different evidentiary record.

Finally, the compensation reasoning does not provide a general formula for valuing loss of quiet enjoyment. The 10 per cent rental assessment was applied to the identified 14-week period in this case. The reasons do not set out a universal percentage or establish that other claims, including distress or related expenditure, would be treated the same way on different facts.

This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have a qualified Australian lawyer check it.

Judgment (41 paragraphs)

[1]

McC v Director of Housing (Residential Tenancies) [2009] VCAT 2748 (17 December 2009)

[2]

Compliance order - whether all reasonable steps taken to ensure tenant's quiet enjoyment of the rented premises - compensation for breach of order.

[3]

CITATION McC v Director of Housing (Residential Tenancies)

[4]

[2009] VCAT 2748

[5]

The Tribunal finds that the landlord has not complied with the order of the Tribunal

[6]

The Tribunal orders the landlord to now pay the tenant the sum of $196.

[7]

J McC rents a unit from the Director of Housing (DOH). Next to her unit is another unit which is rented by the DOH to AF. J McC has been a tenant in this property for many years, as has AF.
Following an application made by J McC for a compliance order, the Tribunal made the following order on 17 September 2008 (the Order):

[8]

The tenant gave the landlord a breach of duty notice under section 208 of the Residential Tenancies Act 1997 alleging a breach of section 67 and was entitled to do so.

[9]

1. The landlord must remedy the breach as specified:

[10]

It must take all reasonable steps to ensure that the tenant has quiet enjoyment of the rented premises at all times.

[11]

2. The landlord must refrain from committing a similar breach

[12]

3. The proceeding is adjourned to a date no later than 18 September 2009 to be heard by any Member of the Victorian Civil and Administrative Tribunal.

[13]

4. The proceeding may be renewed by the tenant giving the principal registrar notice in writing but if the proceeding is not renewed on or before this date it shall be considered withdrawn.

[14]

5. If the proceeding is renewed the application is amended to seek compensation for non-compliance of this order and the tenant is directed to provide full particulars of such compensation to the landlord and to the Tribunal.

[15]

J McC requested renewal of proceedings in a letter dated 15 September 2009 (received by the Tribunal on 17 September 2009) alleging that the landlord had not complied with the Order and sought compensation. The matter was listed for hearing before me. It was adjourned to allow the tenant to provide details of her claim and allow the proceeding to be recorded.
The matter came before me again on 18 November 2009. I heard evidence of the parties on that day and reserved my decision.
These are the reasons for my decision.

[16]

The issue in this case is whether the DOH has complied with the Order. Both parties attended the hearing on 18 September 2008 and an appeal was not lodged, so it can be presumed that both parties were aware of the Order and accepted it.
The questions for me are therefore:
- Has there been a breach of the Order i.e. has the DOH taken all reasonable steps to ensure that the tenant had quiet enjoyment of the rented premises at all times?
- If there has been a breach, should J McC be compensated?

[17]

While I was not the Tribunal Member dealing with the previous application and therefore have no prior knowledge of the parties and the problems related to the tenancy, material submitted at the hearing appears uncontentious in that there has been ongoing conflict between J McC and AF for some twelve or so years. Clearly the landlord has had an ongoing general knowledge of the difficulties as I was told that the DOH had offered J McC alternative accommodation on four occasions between 2004 and 2007 in an attempt to resolve the issues between J McC and AF. J McC told me that the premises offered were not suitable and that was why she had not accepted these offers.

[18]

The Order requires the landlord to take "all reasonable steps to ensure that the tenant has quiet enjoyment of the rented premises at all times."
What steps did the landlord take? I was told that after the Order was handed down, the DOH officer who had attended the hearing spoke with AF and his wife and they were "advised accordingly".
I was further told that when the DOH received a letter from J McC dated 3 June 2009, the letter was attached to her file and she was sent a letter dated 11 June 2009 confirming this.
No other steps were taken. The reason given for this was that, apart from the letter of 3 June 2009, J McC had not contacted the DOH and advised that there were any issues requiring investigation or further action by the DOH. Ms Theodore said that the letter was just allegations with nothing to substantiate the claims.
It was submitted by Mr Jelbart that where allegations are made it is reasonable to follow these up, whether corroborated or not. He said that given a compliance order had been made, "it was odd" that DOH just filed the letter and sent an acknowledgement.
The text of the letter dated 3 June 2009 is as follows:

[19]

After 12 year exhausting years of trying to manage/defend myself against the onslaught of breachable behaviour by the OOH tenants that share this property with me including making several false allegations to your department. I would like to take this opportunity to advise you that I now have concrete evidence in regard to:

[20]

False reporting about me to Bendigo police
False allegations to Bendigo City Council
Perjury against me in the Bendigo Magistrates Court
Masquerading to myself and Bendigo police as an ex-policeman and security guard ( this was his reasoning for his stalking behaviour)

[21]

The reason I am providing you with this information is that I would like you to make sure this is put on my file.

[22]

J McC told me that in addition to the letter she sent, that she also contacted an officer at the DOH approximately 5-6 weeks after the Order was made to report that there were still issues with her neighbour in relation to noise from AF's car and a "man trap". She said that she spoke to Ms J Manjin from the DOH on two occasions and that Ms Manjin had rung her back and said that she had investigated the allegation in relation to noise and that this was a police issue. By way of corroboration, Mr Jelbart said that he had spoken to Ms Manjin in the last 6 weeks and that she had confirmed that she had spoken with J McC at some time, but did not say to Mr Jelbart what the conservation was about or when it occurred. Ms Theodore said that there was nothing on the DOH file indicating contact at or around this time and that from personal knowledge of Ms Manjin that, if contacted, she would have written something on the file.
J McC has given detailed evidence about a conversation with a DOH officer in late October/early November 2008. She recalls the officer's name and the reason for the contact. The fact that contact was made is corroborated by Mr Jelbart, what is not corroborated is the date of contact and what was discussed. DOH relies on the fact that there is nothing in their file to confirm contact, and they have not requested an adjournment to enable the officer to be called to rebut the evidence of J McC.
On balance, I am satisfied that J McC did contact the DOH as she said approximately 5-6 weeks after the Order, and that the DOH was made aware of the issues of noise. It is not contested that no further action was taken by DOH.

[23]

What are reasonable steps? The case law on this issue was recently outlined in the decision of the Tribunal - Mr S v Director of Housing (Residential Tenancies) [2009] VCAT 2615. The member in that case stated at para. 37:

[24]

All reasonable steps have been determined to be a matter of fact after, taking

[25]

into account all of the circumstances (Re Taylor v Commonwealth of Australia (1988) 15 ALD 393 at para 33.) and must be considered objectively rather than just through the eyes of the parties,( Department of Health v Multichem Laboratories Ltd [1987] 1 NZLR 334.) A useful consideration is, what steps could the Director have taken, but did not take?( AA v Ron Tribe & Associates Pty Ltd [2008] VCAT 586).

[26]

Has the DOH taken all reasonable steps? In my view - no. I say this for the following reasons.
First, the DOH was aware of the issues between J McC and AF - they had been ongoing for many years and the DOH had offered J McC another property on four occasions as a means of alleviating the problems. In addition, there had been a VCAT hearing where the Tribunal had made the Order which is the subject of the application. Clearly, the DOH would have been acutely aware of the problems that existed between J McC and AF. Given the nature of these problems as described to me, I would have thought that it was possible, if not likely, that further problems may arise.
Second, I have accepted that DOH was advised of further problems in October or November of 2008 and no action was taken as a result.
Third, it seems to me that the DOH could have taken a more proactive approach when they received the letter from J McC dated 3 June 2009. While this letter refers to matters that, on the face of it, are tangential to the tenancy, the issues raised relate to AF and indicate a level of distress which, in my mind, at least justify a phone call to J McC to clarify whether she was alleging that these incidents or others were a breach of her quite enjoyment of the rented premises. Ms Theodore submitted that the letter does not ask DOH to do other than to place the letter on her file and that the DOH had done this. However, given the circumstances of this tenancy and the history of the dispute between the tenants, to construe the letter literally and place the letter on file and reply by mail - is not in my view taking "all reasonable steps".
I note also that the order requires the DOH to take "all" reasonable steps, not "some" or "various", but "all". This is a significant obligation imposed on the DOH, an obligation which in my view has not been satisfied by the conduct of the DOH after the Order was made.

[27]

The alleged interference with the tenant's quiet enjoyment

[28]

I will turn to the allegations made by J McC in respect of the conduct that she claims has interfered with her quiet enjoyment.
She provided the DOH and the Tribunal with notes outlining specific events relating to the period July - October 2009. In addition she gave evidence, effectively reading through her notes.
In summary, J McC's concerns relate to:
- Noise from AF's aviary
- Excessive noise from AF's car - including loud music, revving the engine and slamming doors
- Alleged swearing, laughing and making obscene gestures towards her.
- Harassment by AF shining flood lights into her property.
- Laughing at her.
- Calling the police to harass her.
Two witnesses gave evidence in support. One gave evidence that he saw AF making obscene gestures towards J McC when she was going to her car. He said the incident continued for 5-10 minutes. He thought it occurred not long after the intervention order was taken out. (I note the intervention order is dated 20 February 2008.) He also stated that he could hear the noise of the birds and described an incident where rose cutting were placed on the footpath by AF.
Another witness said that in October 2008 she heard loud noises coming from AF's car, including the engine revving and loud music. She gave evidence about another incident that occurred outside the rented premises.
AF gave evidence denying the claims made by J McC, concluding that when he sees her, he goes inside because of the intervention order.
A witness from the local council was called and gave evidence that he inspected AF's aviary in October 2007 and that the noise of the birds did not constitute a nuisance for council purposes, so no action was taken.
Summing up. AF has made blanket denials of the numerous allegations made by J McC. One witness can corroborate one incident that occurred after the Order was made in October 2008 - an incident relating to excessive noise from AF's car. Another witness corroborated that shortly after February 2008, he saw AF making obscene gestures at J McC. Of the incidents noted by Ms McC, approximately nine relate to excessive noise allegedly made by AF or his son during the period July - October 2009.

[29]

Is the interference a breach of quiet enjoyment?

[30]

"Quiet enjoyment" is not defined in the Act and it was not defined in the Order. Various cases have considered this term, primarily in the context of the common law covenant for quiet enjoyment. In Southwark London Borough Council v Tanner and Others [2001] 1 AC1, it was held that "a covenant for quiet enjoyment was to be construed as a covenant that the tenant's lawful possession of that land would not be substantially interfered with...". In an article titled "The Price of Quiet enjoyment" (1999) 7 APLJ 155, A Rissman states "It was said in Browne v Flower [1911] 1 Ch 219 at p 228 that a `mere interference with the comfort of persons using the demised premises by the creation of a personal annoyance such as might arise from noise, invasion of privacy or otherwise is not enough' to amount to a breach of the covenant of quiet enjoyment. Something more than a mere inconvenience is required."

[31]

It seems to me that the term quiet enjoyment is not an absolute term, but that a breach of quite enjoyment would have to be an interference that is unreasonable or significant in some way and more than inconvenience. This is consistent with contemporary living arrangements requiring a degree of give and take, of tolerance regarding the behaviour of neighbours.
Based on this interpretation of quiet enjoyment and the evidence before me I am not satisfied that the noise from the birds is a breach of quiet enjoyment. The noise was investigated by council authorities in 2007 and did not warrant further action. There was no evidence that the noise was greater between September 2008 and 2009. Similarly, the use of lights by AF appears reasonable and is not a breach.
Given the corroboration of an independent witness and the notes made by J McC identifying nine incidents of excessive noise, I accept that it is likely that there have been numerous incidents of excessive noise from AF's car and that this has been a breach of quiet enjoyment.
In relation to other alleged harassment (swearing, laughing, visits by police etc) during the period September 2008 to September 2009, there is insufficient evidence for me to conclude that these were acts of harassment by AF which amount to a significant interference with J McC's use of her property.

[32]

The landlord's obligation to ensure quiet enjoyment

[33]

The following analysis is based on the circumstances of this case - which is looking at the landlord's obligation to comply with an order of the Tribunal, as distinct from an application that may be made in respect of compliance with a duty provision in the Act.
In respect to the landlord's obligations, the following case law is instructive.
In the case of Reardon v Ministry of Housing - BC9200599, Smith J of the Victorian Supreme Court made the following comments in relation to s.92 of the Residential Tenancies Act 1980 (this is in similar terms to s.67 of the Act).

[34]

In my view, s92 extends the obligation of the landlord by requiring the landlord to take reasonable steps to ensure that the quiet enjoyment of the tenant is not disrupted when the landlord has notice of a third party disrupting or intending to disrupt a tenant's quiet enjoyment and could take action to stop it. The language of the section departs significantly from that of the usual covenant. In addition, while the section substantially re-enacts CL129(1) of the 1978 Bill it leaves out the concluding words - "without interruption by the landlord". This supports the view that the present section was not intended to be limited to interference with a tenant's quiet enjoyment by the landlord or his or her agent. The words in their natural meaning do not suggest such a limitation" page 11

[35]

In the case of Department of Housing v Consumer, Trader and Tenancy Tribunal and Anor [2003] NSWSC 150 the Supreme Court considered section 22 of the Residential Tenancies Act 1987 (NSW) which is in slightly different terms to the wording of both the Order and the Act. The focus of the court's attention was on the meaning of words "... permit any interference".
Shaw J stated at paras 31- 33:

[36]

31. The reasons for the tribunal's decision detail precisely how the Department was aware of the incidents occurring between its tenants. Departmental file notes, records of complaints, and police records complete the picture the Department had of the threats received by Mr and Mrs Ingram as well as the actual disturbances to their peace and safety. In these circumstances, in my opinion, the tribunal was entitled to find that the failure to take any active steps to prevent the commission of further breaches amounts to an implied license to the disturbing tenants.

[37]

32 The Department must be taken to have known that if it failed to take action the breaches of Mr Ingram's rights as a tenant would continue. Accordingly, even if the tribunal's findings that the failure to take an action in the tribunal amounted to a breach were wrong, nevertheless the knowledge that the breaches would continue meant that the Department did permit further breaches of s22 of the Act.

[38]

33 Taking no active step to remedy the situation after taking cognisance of the likelihood of further breaches is, in my opinion, sufficient for it to have been open to the tribunal to find that liability for the breaches could attach to the Department.

[39]

The facts of this case are similar in that the allegation was that the Department failed to take adequate steps to restrain the actions of neighbouring tenants.
There is further support for this approach in the common law see Aussie Traveller Pty Ltd v Marklea Pty Ltd; Marklea Pty Ltd v Aussie Traveller Pty Ltd - BC9700272; [1998] 1 Qd R 1
The extent of the landlord's liability was not argued by the DOH, their argument being solely that they were not advised of any issue requiring their action.
Based on the specific terms of the Order i.e. that the landlord take all reasonable steps to ensure (emphasis added) the tenant's quiet enjoyment of the rented premises, I am satisfied that, in the circumstances of this case, the DOH is responsible for the actions of AF in regards to a breach of J McC's quiet enjoyment.

[40]

The Order allows for the tenant to claim compensation "for non-compliance" of the Order. I have concluded that the Order was not complied with. I now turn to the issue of compensation.
At the hearing I clarified J McC's claim. I was told it is as follows:
- Court Transcript re an intervention order $55
- Security Lights $16.95
- Security camera $168.99
- Counselling fees $416
- Psychologist report $488
- Train Tickets $639
- Pain and Suffering $1820

[41]

While not wanting to diminish the stress suffered by J McC as identified in the report of W Golan, I am far from convinced that the degree of her distress is the responsibility of DOH's failure to comply with the Order. It appears that her distress has been affected by numerous causes and events occurring over some ten or more years - not all involving her use of the rented premises.
In relation to the items referred to above. I draw the following conclusions.
The court transcript relates to Magistrates Court proceedings and is not relevant to this application.
The psychologist report is a cost associated with the application and I see no reasons to divert from the principle applied generally as to costs - that each party bears their own costs.
The counselling fees relate to services provided to J McC for what appears to me lengthy and ongoing stress, including the loss associated with the death of her mother. Train tickets are for J McC visiting family members because of the stress associated with living at the rented premises. Security lights and camera are costs associated with J McC's anxiety about living in the premises. These costs are not sufficiently related to the breach of the Order to be allowed.
The final claim is for pain and suffering based on a rental reduction of 50% for a six month period. The tenant is effectively claiming that she has partly lost the enjoyment of her premises.
I note that the tenant claimed daily loss of quiet enjoyment and yet has she not taken more positive steps to get the DOH to intervene. I have accepted that she has contacted them twice in a twelve month period, but just as the DOH has not taken all the steps that were reasonable, given the order made, J McC has also been tardy in bringing the issues to the DOH's attention. She has waited until almost the last day to renew her application and claims pain and suffering for six months rather than renewing the application earlier and bringing this matter to a head at some earlier stage.
She has incurred direct costs as a result of the anxiety she suffers in regard to her contact with AF, but I do not think it appropriate that these costs be sheeted home to the DOH.
I will therefore not allow the direct costs claimed, but I believe that J McC is entitled to some acknowledgement of the disruption to her reasonable enjoyment of the premises as a result of significant and regular noise. I will assess this at 10% of her rental i.e. $14/week for the period related to excess noise and covered by her notes i.e. 3 July 2009 until the last reported incident of noise - 10 October 2009. This is a period of 14 weeks. This comes to $196.

McC v Director of Housing

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