McCann v NSW Land and Housing Corporation

History of the proceedings

1. An application lodged on 14 June 2023 was the subject of directions made on 13 July 2023. On 29 August 2023 a second application was lodged. Directions for the provisions of documents were made on 17 October 2023, covering both applications. A notice dated 24 October 2023 advised of the hearing date.

Jurisdiction

1. It is clear there is a residential tenancy agreement between the applicant (the tenant) and the respondent (the landlord), with the result that the RTA applies, and the Tribunal has jurisdiction to hear and determine these proceedings.

Hearing

1. Both applications sought an order that repairs be carried out. Both applications were amended, the first by a letter dated 8 August 2023 and the second by a letter dated 19 October 2023. The effect of those letters was to add a claim for compensation for loss of enjoyment of $3,000. Both applications were heard together.
2. The documents upon which the parties relied were identified and admitted as evidence: Exhibit A for the documents of the applicant-tenant (pages 1-74) and Exhibit R for the documents of the respondent-landlord (pages 1-125). There was no request for cross-examination.
3. It therefore remained to provide an opportunity for submissions, which are summarised below. The usual sequence of applicant then respondent then applicant in reply was follows so that each party had an opportunity to speak in support of their case and to respond to what was said by or for the other party.

Tenant's evidence

1. Exhibit A included a document in the form of a 5 October 2023 letter from the tenant (A2, ie page 2 in Exhibit A), but that document was unsigned. There was also a document that purported to summarise matters reported by the tenant to the landlord (A3). Pages described as "Work history" (A5) land "Job reports" (A13) were also included, as were emails, photos (some with dates and times, very few with any accompanying description, but none with both), and a handwritten map headed "Fence issues" (A38).
2. The final document in Exhibit A was a 19-page report from Cheyne Waddingham of Town & Country Inspections, prepared following an inspection on 28 August 2023 (A54), but that report did not contain either any details of the qualifications or experience of the author or any reference to the Tribunal's code of conduct for expert witnesses.
3. Despite a work order being sought, there was no indication of the wording of the order sought, nor was there any indication as to the basis of the claim for compensation of $3,000. Further, there is no indication why a second application was lodged on 29 August 2023, especially when leave to amend the first application was granted on 13 July 2023.

Landlord's evidence

1. Omitting copies of documents issued by the Tribunal, Exhibit R comprised copies of the following documents: (1) the residential tenancy agreement (R8), (2) reports dated 21 September 2023 (R22 and R53), (3) a chronology (R30), (4) emails sent and received in November 2023 (R32), (5) photos, with dates taken but no description (R36-51 and R58-125), and (6) a log (R52).

Tenant's submissions

1. After referring to s 63 of the RTA, in relation to the work order, it was suggested that the items still requiring work were the items numbered 1, 2, 6, 7, 9, and 10, each of which is separately considered below. As to the claim for compensation, it was suggested that the landlord's repairs had been piecemeal over time, and that only a minimum had been done by the landlord, with the contended result that repairs had to keep being done. The fence was said to be an example of that. It was said that the extent of the tenant's distress and embarrassment were set out in the letter at A2.

Landlord's submissions

1. It was indicated that the report at R22 was an updated version of the report at R53 and that work not undertaken and the reason why appeared at R24-25. After responding to each of the items numbered 1, 2, 6, 7, 9, and 10, submissions were made in response to the claim for compensation.
2. In relation to the claim for compensation, the landlord's case was that reports had been actioned, that the landlord could only be at fault if action was warranted but nothing was done. The fence was said to have been inspected in June 2023 and found to be functional. There was also an observation that the onus is on the tenant to inform the landlord and that the landlord can only address what has been brought to its attention. No submission was made as to the amount of compensation that should be awarded if it was found that there was a case for compensation to be paid.

Submissions in reply

1. It was indicated that the tenant relied on the "Town and Country report" rather than the tenant's unsigned letter. The carpet was said to not be in a good condition. The gate in question was said to be the wooden gate at the front of the premises. There was also a submission that the evidence suggested the fence had been an ongoing issue since as far back as 2018.

Relevant law

1. In the RTA, s 63 provides as follows: (1) A landlord must provide and maintain the residential premises in a reasonable state of repair, having regard to the age of, rent payable for and prospective life of the premises. (2) A landlord's obligation to provide and maintain the residential premises in a reasonable state of repair applies even though the tenant had notice of the state of disrepair before entering into occupation of the residential premises. (3) A landlord is not in breach of the obligation to provide and maintain the residential premises in a reasonable state of repair if the state of disrepair is caused by the tenant's breach of this Part. (4) This section is a term of every residential tenancy agreement.
2. In the RTA, s 187(1)(e) provides the Tribunal with the power to make an order for work to be carried out to remedy a breach of a residential tenancy agreement. However, in Glenquarry Park Investments Pty Ltd v Hegyesi [2019] NSWSC 425 (Glenquarry) at [114] it was said that a work order should be specific and not merely a "wish list". While that decision related to the obligation to repair and maintain imposed by s 106 of the Strata Schemes Management Act 2015 (NSW), the same principle is applicable here. Since, in this case, the tenant has not provided the form of the work order she seeks, the question becomes whether there is sufficient evidence to enable the Tribunal to prepare a work order.
3. In addition to s 187(1)(d) providing the Tribunal with the power to award compensation, s 187(2) is in the following terms: Without limiting the Tribunal's power to make an order as to compensation, the Tribunal may order compensation to be paid for the following - … (b) any other breach of a residential tenancy agreement, …
4. On 1 November 2023, in Young v Chief Executive Office (Housing) [2023] HCA 31, the High Court of Australia determined that a tenant can recover compensation for distress and disappointment for a landlord's breach of its statutory obligation.
5. The two-member minority considered that compensation should be assessed by reference to common law principles of contract. However, the three-member majority, based on decisions relating to other cases involving statutory compensation, held that: … the task of the Tribunal in each case is to arrive at a measure of compensation which conforms to the purposes of the Act and to the justice and equity of the case, having regard to the nature and purpose of the particular obligation with which there has been failure to comply …
6. The important point is that compensation is payable for both tangible and intangible loss suffered by a tenant. As a result, compensation may include what might be termed mental consequences and not just physical consequences.
7. As the tenant relied on an expert report, it is noted that expert witness is permitted to give opinion evidence. However, there are matters which the Tribunal must consider when deciding what weight to give to that evidence: first, whether the expert has qualifications and/or experience in the relevant field; secondly, whether the expert has read and agreed to be bound by the Tribunal's Procedural Direction 3 which reminds that it is the duty of an expert to assist the Tribunal and not be an advocate for the party for whom he provided a report.
8. Irrespective of whether those two matters are addressed by the expert, decisions such as Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 (Makita) make it clear that, for such evidence to be accepted, the following considerations apply: 1. the expert's opinion must clearly indicate the facts upon which it is based, 2. those facts must be proved so there is a factual basis for the opinion, and 3. the reasons or the process of reasoning for the opinion must be disclosed.

Consideration

1. Despite these proceedings being based on s 63 of the RTA, which requires the Tribunal to have regard to (1) the age of the premises, (2) their prospective life, and (3) the rent payable, neither party provided evidence of those matters other than that the residential tenancy agreement (R8) was dated 18 March 2008, and the initial weekly rent was $195.
2. As the tenant commenced these proceedings, and made allegations in her overlapping applications, she bears the onus of proof and must therefore establish a breach of s 63 of the RTA if she is to obtain a work order and/or compensation. To adopt the phrase used in Benjamin & Khoury Pty Ltd v Rahme (No 4) [2023] NSWSC 1162 at [5], the Tribunal is not required to go "fossicking and ferreting" through the evidence to find the tenant's case. While the Tribunal has read and considered all the evidence, it must be recognised that a failure to detect a specific matter of detail in 197 pages of evidence may occur when neither party referred to that aspect of the evidence.
3. It is convenient to first deal with the items said to warrant a work order, considering whether s 63 of the RTA has been breached and, if so, what work order should be made and then to consider the two issues raised by the claim for compensation, namely liability (whether a breach of s 63 of the RTA has been proved) and quantum (what amount of compensation should be awarded).
4. To repeat a matter which was brought to the attention of the parties by the Tribunal during the hearing, it is not uncommon in Tribunal hearings for parties to seek to prove their case by tending photographs (photos). The question which then arises is what do those photos prove? By way of illustration, if a person provides a family photo to a stranger, that stranger would not know when the photo was taken, who or what is shown in that photo, and what it is suggested that photo shows. Thus, a photo may prove very little unless it is accompanied by evidence as to (1) when that photo was taken, (2) what is shown in that photo, and (3) how it is suggested that photo provides support for the case of the party tendering that photo.

Item 1

1. The tenant's allegation in her second application was as follows: Foundation in bedroom 3 where on the rear exterior wall is cracking and buckling midway where the side beam is. The side interior wall is cracking and buckling above the window, plus the floor is buckling over the beam which is rising causing a trip hazard.
2. The tenant's case was said to be based on the photos at pages A46, A50, A60 and A61 and the photo on A61 was said to indicate a bowed wall. The landlord's case for items 1 and 2 was said to be based on the documents submitted, and reference was made to the photos at R113, R114, and R117.
3. The Tribunal considers that the three photos on page A46 to have little probative value: the first appears to show bricks with little or no mortar, the second appears to show a slight difference in the level of a floor which is said to be in bedroom 3, and the third shows a small gap at the junction of two walls and the ceiling in what was said to be bedroom 3. The photo at A50 shows no more than what appears to be a tree root against brickwork that appears to be in good condition. There is no evidence of when those photos were taken, and the Tribunal was not taken to evidence of when the matters covered by this item were first brought to the attention of the landlord.
4. While reference was made in closing submissions to pages A60 and A61, the relevant pages in the report of Mr Waddingham appear to be pages A59-63 which deal with what he labelled as defects 3, 4 and 5.
5. As to "Defect 3 - Exterior", this report (A59) suggested there had been "Substandard repairs" but did not either indicate the evidence on which that opinion was based or provide reasons for that opinion. Indeed, next to the words "Ongoing consequence" were the words "Appearance only at the time of inspection". Alongside the words "Opinion of cracking" were the words "Not applicable". The five photos provided (on A60) for this defect were not accompanied by any description and, as a result, it is difficult to see what it is suggested they show.
6. Moving to "Defect 4 - Exterior" (A61), the defect was said to involve "Damage, Distortion, warping, twisting". Again, alongside the words "Opinion of cracking" were the words "Not applicable". Again, there is no evidence to suggested what the single photo provided (on A61) in support is intended to show.
7. Under the heading "Defect 5 - Interior" (A61), the report suggested there were "Cracks, damage and imperfections in areas" but did not identify those areas. No "Opinion of cracking" was expressed. Of the eight photos provided in support of this defect (A62), there appear to be unrepaired cracks in only two of those photos but there is nothing to indicate which part of the premises are depicted in those photos and the last of them, in the bottom right corner, appears to be damage that cannot be said to be cracking.
8. For each of these three defects, Mr Waddingham suggested "This defect should be referred to a qualified building professional for the repairs/scope of work required." The suggested building professional was said to be a builder for defect 3, a bricklayer for defect 4, and a plasterer and painter for defect 5. However, the suggestion that matters be referred to a building professional is not sufficient, having regard to what was said in Glenquarry.
9. The photos referred to for the landlord (R113-114 and R117) do not either add or detract from the tenant's case.
10. At best, the tenant has only established cracks in the ceiling and/or wall of bedroom 3. However, it is also necessary to consider whether that aspect was brought to the attention of the landlord and, if so, when to determine if there has been a breach of s 63 of the RTA since s 187(1)(e) only provides a power to order work to be done to remedy a breach of a residential tenancy agreement.
11. There is a suggestion, at A4, that issues in relation to bedroom 3 were reported to the landlord on 1 August 2023, but there does not appear to be any supporting entry in the schedules of the landlord that are at A5-12.
12. The landlord's evidence includes a report (R22-29), prepared following an inspection on 20 September 2023 by Matthew Fleming and Graham Hardes, which determined that no work is required for item 1, the given reasons being: No buckling or cracking of internal wall [sighted] at time of inspection, floor trip hazard not evident. Dwelling conforms to the [Building Code of Australia].
13. In circumstances where there is very limited evidence from the tenant, which rises no higher than suggesting cracks in the walls/ceiling in bedroom 3, and specific evidence to the contrary from the landlord, the Tribunal is not satisfied that the tenant has proved a breach of s 63. As a result, there is no basis for a work order to be made in respect of this item.

Item 2

1. The tenant's allegation in her application was as follows: Foundation in the bathroom [where] the bath/show is the beams around and above the shower are causing cracking in causing the shower wall to buckle so the [wall] has become slightly wavy.
2. The tenant's case was said to be based on the same photos as for item 1. Those photos were said to be of a bedroom 3 wall, and a bathroom, as well as depicting the foundations. The landlord's case was said to be covered by what was said as to item 1.
3. The Tribunal, having looked at the photos to which reference was made during submissions, is unable to see any photos which provide support for this item, which is not referred to in the tenant's unsigned letter (A2) and the report of Mr Waddingham only refers to a bathroom in defect 9 which relates to what the tenant labelled as item 9.
4. The landlord's report, in relation to this item, did not provide any support for this item, saying: Wall tiles in good condition small section so of grouting missing through (wear and tear) No replacement warranted
5. The evidence of the tenant's reporting of this item is the same as for item 1, noting that the report of water leaks in the bathroom is covered by item 9.
6. Again, the tenant has failed to establish any breach of s 63 of the RTA and, that being the case, no work order can be justified.

Item 6

1. The tenant's allegation in her application was as follows: Back rear side fence on the right side needs to be replaced due to bamboo pushing the paling off and the wood on the rails is rotting away causing the palings to come off as there is nothing to hold them on. Which is allowing next door's dog to come through the fence and attack my dogs causing a safety issue for everyone.
2. For the tenant, reference was made to pages A3 and A10 as well as the photos at A16-18 and A39-41 plus the handwritten diagram at A38 as well as pages A57-58 in the report of Mr Waddingham.
3. The landlord's case was that the fence was solid and functional, with no signs of rot, and meets the landlord's standards. Further, thar the photos at R106-112 show that the side/rear fence is in reasonable condition.
4. The Tribunal notes the tenant claimed to have reported this issue with the side fence on 14 February 2018, 30 October 2019, and 17 July 2023 (A3). There is support in the landlord's records for a complaint having been made on each of those three dates (A8, A9, and A10 respectively). However, the first two of those pages record that work was carried out to fix the palings. The notation in relation to the 17 July 2023 reads as set out below: [Tenant] advised that the back RHS fence is broken. Palings come off and rotten. Cannot be nailed back on. Safety concern - Neighbours dogs have attached [tenant's] dog. Kids on property. Please attend and make safe. Please submit Fence Report.
5. Emails dated 9 and 14 February 2018 (A15 and A13) suggest that was when this matter was first raised. A work order, issued on 6 March 2018 (A13), read: Investigate and repair side fence between this property and number 23. Repair if possible or scope for replacement id no repair possible.
6. The photos at A16-20 are dated 1 March 2018 and 31 October 2019 appear to relate to this item but their dates suggest they pre-date rectification work. The photos at A39-41 do not bear any date: there are words "Front side fence plus gate" on A39, "Back rear side fence" on A 40 and no words on A41. The photos of the fence from A42 do not appear to suggest any matters requiring attention.
7. Mr Waddingham addressed the fence in the portions of his report labelled as defects 1 and 2. The first three photos provided under the defect 1 heading do not suggest any matter requiring attention. The three photos provided under the defect 2 heading show some damage at ground level, but not such as would enable access, and one loose paling. There is limited narrative accompanying those pictures and the requirement for a factual foundation and reason, as suggested by cases such as Makita, are lacking. No form of work order is suggested.
8. While the landlord's photos at R106-112 do suggest the fence shown in those photos to be in good condition, the is nothing to indicate either when those photos were taken or what portion of the perimeter fence is depicted.
9. The landlord's 21 September 2023 report (R22 at R24) records, in relation to this item: Fence is sold and good condition no signs of rot [sighted] at time of inspection, meets [landlord's] standards
10. The evidence suggests that the landlord undertook work to repair the fence after the tenant complained in February 2018 and in October 2019. As to the July 2023 complaint, there is evidence of an instruction to address that complaint having been given and insufficient evidence from the tenant that any problem remains after that complaint was made. There is evidence from the landlord that there was no work required as at 20 September 2023.
11. Again, there is insufficient evidence to support a finding that the landlord has breached s 63 and there is no basis upon which a work order can be made.

Item 7

1. The tenant's allegation in her application was as follows: Front gate needs to be replaced as the bolts holding the gate up [have] rusted away causing the gate not to be to open and [close] and needs relining.
2. The tenant's case was based on the last photo on page A57 which was said to show the gate hinge. The landlord's case was based on a page in its report (R24) which referred to Colorbond gates.
3. The Tribunal can see a broken hinge clearly shown on the bottom right photo on page A57. The landlord's response (R24) appears to relate to another gate because it refers to a Colorbond gate. While there is nothing in the evidence to suggest the condition of this gate has been brought to the attention of the landlord by the tenant, that plainly occurred when Mr Waddingham's report was provided, to the Tribunal and the landlord, early in November 2023, more than a month prior to the hearing. Despite the late provision of the landlord's documents, there is no evidence to suggest that matter has been addressed.
4. In those circumstances, there had been a breach of s 63 arising from the failure to repair or replace the broken hinge to put the gate in the picket fence in a working condition and an order to that effect should be made. Recognising the difficult of obtaining tradespeople during the month of January, the Tribunal considers it reasonable to give the landlord until 31 January 2024 to repair the hinges on the gate in the picket fence.

Item 9

1. The tenant's allegation in her application was as follows: The floor underneath the bath has [rotted] away in some part and was not fixed only covered up with plaster [board] so you cannot see it. As the with (sic) the moisture built up under the wood will continue to rot away which will lead to the floor under the bath to give way.
2. The tenant's case was that this item was more about the waterproofing in the bathroom and the issues numbered 3, 4, 9, and 12. It was suggested that the landlord was first put on notice about this item in 2017-2018.
3. The photos at A30 were referred to as was page A68, being part of Mr Waddingham's report. Professional sealing of the bathroom was said to be required.
4. The landlord's case was again based on a page in its report (R25) and it was submitted that there is no damaged or weakened floor and no supporting evidence in the tenant's case.
5. The Tribunal has difficult in understanding what the photos at A30, taken on 1 August 2018 are said to establish. As this item is not included in the tenant's 5 October 2023 letter (A2), the only cogent evidence in support of this item is what appears in Mr Waddingham's report under the heading of defect 9 (A68).
6. On that page there was a description of "Substandard sealant, and damaged tile". There was a suggestion of "Possible continued deterioration and damage to framing under bath and flooring" but what is possible does not meet the required standard of proof, which is on the balance of probabilities. In other words, saying that something is possible does not prove that matter is more probable than not. While three photos were provided, there is nothing to indicate when they were taken or what it is suggested they show.
7. The landlord's evidence included a photo (R59) that appears to have been emailed on 23 June 2023 which appears to show the same area in a better condition. The landlord's report (R25) addressed the topic raised by saying: No damages [sighted] or weakened floor observed at the time of inspection
8. That being the evidence, the tenant has not proved the allegation as worded in her application for this item. To the extent that the tenant is now instead referring to the sealant and a damaged tile, the evidence is again insufficient to justify any finding in her favour.
9. In such circumstances, it is not necessary to consider either what was reported in relation to this item or when as the evidence does not support any finding there has been a breach of s 63 of the RTA.

Item 10

1. The tenant's allegation in her application was as follows: Carpet in the main living room is fraying at the joins and rippling at the hallway door causing a trip hazard. Not only that the carpet is stained and stinks no matter how many times we have it profession[ally] cleaned and does not go away so it needs [to be] fully replaced.
2. The tenant's case was that the tenancy commenced on 18 March 2008, but the carpet had not been replaced since then. Reference was made to the second bullet point in the unsigned letter of the tenant, and the photo at A53 which was said to show that the carpet was old, mottled, worn, had outlived its useful life span, and was not in a reasonable state of repair.
3. For the landlord, reference was again made to page R25, being part of the landlord's report. It was suggested the carpet is still in decent condition and met the landlord's standards. It was contended that the photo at A53 does not show anything significant, and that the mere fact that the tenancy has continued since 2008 does not mean the carpet needs to be replaced and there is no direct evidence of the need for that carpet to be replaced.
4. The Tribunal notes that the report of Mr Waddingham did not include any reference to this item and the photo upon which the tenant relied (A53) is not sufficient to support the allegations made in respect of this item. For the sake of completeness, it is noted that the landlord's report recorded, for this item: Carpet in decent condition no odour or staining present, small section starting to wave in hall entrance which is not a safety issue or trip hazard. Meet[s] [landlord's] standards.
5. This claim is rejected as the tenant has failed to establish any breach of s 63 by the landlord. It is noted that the landlord's log (R30-31) suggests the tenant's complaints have been addressed, with a reasonable level of priority.
6. The position in relation to these six items may have been different had the tenant heeded the direction of the Tribunal, made in order 6 on 17 October 2023, that all evidence from any witness must be in the form of a statutory declaration or affidavit.

Liability

1. During the hearing, the tenant did not contend for any breach of s 63 of the RTA beyond the six items considered above. As a result, the only breach that has been established by the tenant, is in relation to the gate.

Quantum

1. There does not appear to be any evidence that would justify an award of compensation in relation to a breach of s 63 of the RTA caused by a gate in a picket fence having one non-operative hinge.
2. While it was suggested that the condition of the side fence was such that a neighbour's dogs gained entry to the premises in which the tenant is living, that incident appears to have given rise to a complaint. Clearly, unless the condition of the fence was detected during a regular inspection, and there is no evidence of that, a landlord could not repair the fence until it was reported by the tenant.
3. For the tenant to become entitled to compensation for that incident, the incident would need to have been caused by a breach of the obligation to "maintain the residential premises in a reasonable state of repair" which, for the reasons indicated in relation to item 6 above, has not been established. It appears that the position in relation to the dog gaining entrance to the tenanted premises, that it was the incident that caused the complaint.
4. As the requisite sequence of (1) the matter coming to the landlord's attention, (2) a failure to repair or maintain, and (3) impact such as to warrant compensation is not present in this case, the claim based on this incident fails.
5. Accordingly, the claim for compensation must be dismissed.

Orders

1. For the reasons set out above, the following order is made: 1. By 31 January 2024 the landlord is to repair the hinges on the gate in the picket fence to restore that gate to working order. 2. The application is otherwise dismissed.

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: 13 August 2024