NSW Land & Housing Corporation v von Reisner

DECISION : Removal of loose asbestos dust is cleaning not maintenance, and landlord is not obliged to maintain cleanliness. In absence of likelihood of wiring being energised, repairs are not necessary. Landlord is therefore not entitled to enter premises. Summons dismissed. Orders in earlier proceedings set aside and proceedings dismissed as abuse of process.

CATCHWORDS : LANDLORD AND TENANT - Residential lease - statutory terms - landlord's right to enter to carry out necessary repairs and maintenance - landlord's obligation to provide premises in reasonable state of cleanliness and to provide and maintain premises in reasonable state of repair - where loose asbestos dust in premises - where defective unenergised electrical wiring - whether landlord entitled to enter to remove dust and repair wiring. - PROCEDURE - where orders made in earlier proceedings as sought in plaintiff's summons - where defendant endeavours to comply but plaintiff obstructs performance and no longer wishes orders to be operative - whether orders should be set aside - whether proceedings should be dismissed as abuse of process.

LEGISLATION CITED : Residential Tenancy Act 1987 (NSW), ss 24(1)(c); 25(1)(b) Uniform Civil Procedure Rules 2005 (NSW), rr 4.15, 36.15

PARTIES : NSW Land & Housing Corporation (plaintiff) Koidu von Reisner (defendant)

COUNSEL : Mr J B Turnbull (plaintiff) Ms von Reisner (in person) (defendant)

SOLICITORS : McCabe Terrill Lawyers (plaintiff)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION DUTY LIST

5110/06 NSW Land & Housing Corporation v Koidu von Reisner JUDGMENT (Ex tempore) 1 HIS HONOUR: The plaintiff NSW Land & Housing Corporation is the landlord and the defendant Ms von Reisner is the tenant of premises at unit 26/14 Wauchope Crescent, South Coogee.

2 On or about 1 June 2005, Ms von Reisner filed a summons in proceedings 3241/05, seeking relief in the nature of mandatory injunctions requiring the Housing Corporation within seven days to decontaminate and remove all asbestos particles from the premises, and to rectify defective electrical systems in the kitchen and provide power to the stove and appliances in those premises. Those proceedings, which I shall call the 2005 proceedings, were adjourned from time to time until they came before Windeyer J on Friday 9 June 2006. On that occasion, counsel appeared pro bono for Ms von Reisner, who was the plaintiff. Counsel who appeared for the Housing Corporation informed the court that it was prepared, without admissions, to consent to all the relief which Ms von Reisner sought in the summons, other than some prohibitory injunctions which were unnecessary. Although Ms von Reisner's counsel applied for an adjournment, Windeyer J was of the view that it was ridiculous to incur the costs of having the proceedings continue just because Ms von Reisner was unwell, when all the relief she sought in the summons was consented to, and accordingly, with the Housing Corporation's consent, his Honour made the orders sought by Ms von Reisner in her summons. 3 From that point, the 2005 proceedings assumed a bizarre course. From those orders, which had been made in her favour on her own summons, Ms von Reisner sought leave to appeal to the Court of Appeal, and a stay of the orders made by Windeyer J. On 17 July 2006, Beazley JA refused the application for a stay, fundamentally on the basis that Ms von Reisner came to court seeking the orders which were granted, and in those circumstances it was inappropriate now to grant a stay application. Ms von Reisner sought a review of Beazley JA's orders, and the application for a review was dismissed on 25 September 2006. So far as I can tell, no application for leave to appeal has been disposed of by the Court of Appeal. 4 On 29 September 2006, the Housing Corporation filed the summons in the present proceedings, by which it sought orders permitting its contractors and workmen to enter Ms von Reisner's premises and perform the work described in Windeyer J's orders in the 2005 proceedings, restraining Ms von Reisner from interfering with them doing so, and requiring the Housing Corporation to provide at its own expense alternative accommodation for Ms von Reisner for the duration of the works, which was estimated to be some ten days. Ms von Reisner opposes the relief claimed. Having had some opportunity to observe matters over the last week as they have progressed before the Court, I believe it is fair to say that, despite whatever means the Housing Corporation or the Court has proposed to permit some accommodation to be reached whereby the work could be carried out, Ms von Reisner has found a reason for asserting that it could not be done. 5 For the relief sought in its present application, the Housing Corporation relies first on its power as landlord, under the term incorporated in a residential tenancy agreement by Residential Tenancy Act 1987 (NSW), s 24(1)(c), to enter residential premises the subject of a residential tenancy agreement to carry out necessary repairs to or maintenance of the premises, if the tenant has been given not less than two days notice, and secondly on its obligations under the term incorporated in the residential tenancy agreement by s 25(1) of that Act - to the effect that the landlord shall provide the residential premises in a reasonable state of cleanliness and fit for habitation by the tenant, and that the landlord shall provide and maintain the residential premises in a reasonable state of repair having regard to the rent payable for and prospective life of the premises. 6 The power of entry under the term imported by s 24(1)(c) depends on whether the works proposed to be carried out are necessary repairs or maintenance. They will be if they are repairs or maintenance which the landlord is obliged to perform under the terms imported by s 25. In my view, the use of the word "maintain" in subsection 25(1)(b) - as distinct from "provide" in subsection 23(1)(a) - is significant, and indicates that the obligation to provide premises in a reasonable state of cleanliness and fit for habitation is one which exists at the time when the premises are provided to the tenant - that is, at the commencement of the lease - as distinct from being a continuing obligation, as the second obligation to maintain the premises in a reasonable state of repair is. 7 The evidence establishes that, as at 1 March 2004 and 21 January 2005, the premises were contaminated by asbestos dust. However, it is now clear that there is no evidence that bonded asbestos forms any part of the premises. Rather, the contamination is by loose asbestos dust in various parts of the premises. The removal of loose asbestos dust may be "cleaning" the premises, but it is not maintaining, or repairing them: it is cleaning their interior, rather than maintaining or repairing the premises themselves. It does not fall within the concept of "necessary repairs or maintenance" within s 24(1)(c), because it is not the landlord's duty or responsibility to clean the premises during the term.

8 The other subject matter of the proposed works is repairs to the electrical works in the kitchen of the premises. There is evidence that there is cabling in the surface in the kitchen which "if accidentally energised" could pose a dangerous situation. However, the evidence also shows that that cabling is not connected to a source of energy at present, and that the fuses which serve unit 26 in the main distribution board are not in use. While it is no doubt desirable that the electrical cabling be made safe in the event that it is energised, there is no evidence of any likelihood that it will be energised, and in those circumstances it does not seem to me that the requisite degree of necessity to authorise entry by the landlord to repair that cabling has been established. 9 In those circumstances, I do not think that the Housing Corporation has made out a case under s 24(1)(c), having regard to the terms of s 25(1)(b). Accordingly, I propose to dismiss the summons. 10 Ms von Reisner has purported to file a cross-claim, and I will assume, although I doubt, that it has been regularly filed within time. Much of the relief which it claims is obviously unsustainable and inappropriate. It is very difficult to comprehend what cause or causes of action it invokes. To the extent that it relies on any alleged breach of the residential tenancy agreement, it is subject matter which could and should more appropriately be dealt with in the Consumer, Trader & Tenancy Tribunal than in this Court. In its present form it is vexatious, and contains irrelevant and inappropriate material; it is prolix; and even if it has some relevant content, the preponderance is irrelevant and oppressive. I therefore propose to order that it be struck out pursuant to Uniform Civil Procedure Rules 2005 (NSW), r 4.15, and consequently that the cross-claim be dismissed. 11 So far as the 2005 proceedings are concerned, despite the circumstance the Court of Appeal has twice declined to stay Windeyer J's orders, it seems to me that in circumstances where Ms von Reisner in those proceedings does not wish them to be carried into effect, and the Housing Corporation as defendant has now reached the position that it no longer wishes to be bound by orders with which Ms von Reisner will not permit it to comply, it is appropriate that, with the Housing Corporation's consent, I set those orders aside, pursuant to UCPR r 36.15. 12 Accordingly, my orders are:

(3) Set aside the orders made in proceedings 3241/2005 on 9 June 2006;

(4) Order that Ms von Reisner pay the costs of the Housing Corporation of 9 June 2006 and otherwise occasioned by those orders having been made. 13 Although the summons has been dismissed in circumstances of this case it would be grossly inappropriate to make any consequential costs order. The proceedings which have culminated today have involved the Housing Corporation endeavouring to find a way of doing what Ms Von Reisner sought in the 2005 proceedings. 14 Ms Von Reisner has made it clear that she does not now want the Housing Corporation to do that work. The situation is one in which, by her conduct, Ms Von Reisner has demonstrated that those proceedings are an abuse of process because, by her conduct, she has made manifest that she does not want the relief claimed in them. It necessarily follows that she is not prosecuting them genuinely for the relief claimed in them, and that they are therefore an abuse of process. In those circumstances it seems to me that it is quite inappropriate that the 2005 proceedings remain on foot. 15 I therefore agree with the Housing Corporation's submission that the 2005 proceedings should be dismissed.

16 Accordingly, I order that proceedings 3241 of 2005 be dismissed.

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