Nunez v Sampson

NCAT Appeal Panel|2022-02-07

e Date of Decision: 18 November 2021 Before: J Levingston, General Member File Number(s): RT 21/36775

Overview

The appellant, Ms Nunez, appeals from a decision of the Tribunal which awarded compensation in the amount of $15,000 to her tenant, Mr Sampson, the respondent to the appeal, along with additional amounts to be paid in respect of certain items for so long as the defects were not rectified.
The Tribunal assessed compensation as totalling $37,000 for breaches by Ms Nunez, as landlord, of the residential tenancy agreement between the parties, although at another point of the reasons for decision the amount was assessed as totalling $25,000. The Tribunal then reduced the award to the maximum allowed of $15,000 in respect to the breaches that had been rectified.
For the reasons set out below, we consider that the Tribunal erred by providing inadequate reasons for its assessment of compensation. We also consider that this was the only appealable error that was established. As a consequence, the orders for payment of compensation must be set aside and re-determined. We have proceeded to determine the amount of compensation to be paid by the appellant.

Background

On 28 July 2021 the parties entered into a written residential tenancy agreement for a fixed term of 18 months (ending on 28 January 2023) in respect of what the Tribunal described as luxury premises in the eastern suburbs of Sydney. The term commenced on 29 July 2021.The monthly rent is $20,639.88.
The residential premises are located on four levels. A diagram presented to the Tribunal showed the internal layout. On the ground level there is a games and rumpus room, a cellar, a barbecue area and a pool. On the next level (the lower level) there is a home theatre and two bedrooms (bedrooms 3 and 4). Each bedroom opens onto a common balcony facing east and accessed through sliding doors. On the next level (the entry level) there is a kitchen, living and dining room opening onto a deck. On the next level (the upper level) there are two bedrooms-a large bedroom (bedroom 1) that opens onto an east facing balcony and a smaller bedroom at the rear (bedroom 2), which opens onto a smaller balcony. These balconies are also accessed through sliding doors in the bedrooms.
At the commencement of the tenancy agreement all of these sliding doors could only be locked in a closed position. There is air-conditioning servicing all rooms but it was accepted by the Tribunal that the only way the bedrooms could obtain fresh air was by opening the sliding doors, apart from Bedroom 4, which has a window on its southern wall. According to the tenant, this window is at waist height to the southern footpath, has no security grille and no ability to lock when opened.
The residential premises are one part of a dual occupancy. Accordingly, on one side of the residential premises there is an identically constructed property. On the other side (the southern side), there is a block of 5 units.
Under the residential tenancy agreement, the premises were occupied by Mr Sampson, his partner and his 15-year-old stepdaughter.
On 28 July 2021, the tenant informed the landlord's agent that trees adjacent to the pool were overgrown and required attention.
Over the period from 8 to 10 August 2021, the tenant informed the landlord's agent of the following additional problems with the residential premises: 1. The bedroom sliding doors could not be locked in an open position in order to allow ventilation. 2. The AVL equipment in the media room (home theatre) was not working and had not been working since the start of the tenancy agreement. 3. Two gas heaters on two of the floors were not working. 4. The barbecue was very dirty.
Subsequently, it seems that the tenant informed the landlord's agent of the following additional matters: 1. Several doors were difficult to open and shut. 2. The pool bathroom was in need of repair because there was rust and paint falling onto the floor. 3. There was fungus growing on the inside wall next to the front door. 4. A privacy screen on one of the balconies was in a bad state of disrepair. (This issue was not pursued at the hearing). 5. There was a sewage overflow on 3 September 2021. 6. The skylight leaked during rain storms. This was first reported to the landlord's agent on 2 October 2021. In an email to the landlord's agent that day it was said that the tenant noticed in the rain the previous day that the skylight above the stairs that led to the master bedroom was leaking and photos were attached that were said to show a rusted out frame and water stains to the blind and wall. At the hearing at first instance, Mr Sampson said that when it rains heavily the skylight dribbles down the inside wall (transcript, page 23, line 1). He did not claim that any specific damage had been caused as a result. On appeal, the landlord said that on 26 November 2021 she attended the premises and the tenant pointed out the leak which was just a bit of water down the wall. This was not contested by Mr Sampson.
On 29 August 2021, Mr Sampson commenced proceedings in the Tribunal against Ms Nunez. These proceedings raised all of the issues referred to above except for the issues concerning overgrown trees adjacent to the pool and the issues concerning the sewage overflow and leaking skylight, which had not yet occurred.
The relief sought by Mr Sampson at this time was for orders to be made for the immediate repair of these items, for compensation pursuant to s 187 (1) (d) of the Residential Tenancy Act 2010 (NSW) (RTA) in the amount of $10,319.94 representing half a month's rent and for a reduction in rent to apply and until such time as the repairs were performed. The basis for the assessment of loss representing half a month's rent was said to be that: … 2 of the 3 bedrooms which are occupied are virtually uninhabitable at night due to lack of security if an opening for ventilation is made and a major feature of the house is an operating media room as was guaranteed in the lease agreement. The other items which require repair add to the lack of amenity….
Subsequent to the commencement of proceedings, the following problems were fixed by the landlord before the Tribunal hearing on 18 November 2021: 1. The barbecue was cleaned on 27 August 2021 (4 weeks from the commencement of the tenancy, plus one day). 2. The doors were fixed on 1 September 2021 (5 weeks from the commencement of the tenancy, less one day). 3. The sewage overflow was fixed on 3 September 2021. 4. The gas heater in the rumpus room and the gas heater in the lounge room were fixed on 6 September 2021 (6 weeks from the commencement of the tenancy, less three days). 5. The pool bathroom was repaired on 7 September 2021 (6 weeks from the commencement of the tenancy, less two days). 6. The fungus growing near to the front door was repaired on 8 September 2021 (6 weeks from the commencement of the tenancy, less one day). 7. The AVL equipment was fixed on 23 September 2021 (8 weeks from the commencement of the tenancy). The full system was in operation on 28 September 2021, albeit with intermittent problems.
As the Tribunal noted, on 26 June 2021 Covid-19 lockdown orders were made by the NSW Government which continued until 11 October 2021.
Following the Tribunal's decision on 18 November 2021, the following problems were fixed by the landlord: 1. On 26 November 2021 locks were installed on all sliding doors so they could be locked open (17 weeks from the commencement of the tenancy, plus one day). 2. On 1 December 2021 the trees adjacent to the pool were trimmed (15 weeks from 16 August 2021, the day the tenant was told the work would be done).
As to the skylight, at the hearing at first instance, the landlord's agent said that somebody had been to the premises a few times to get different quotes and get workmen together (transcript, page 31, line 40). On appeal, the landlord said that a quote for repair had been approved on 22 November 2021. There was no suggestion on appeal that the Tribunal's order for the work to be done had not been carried out.

The relief claimed by the Tenant at the hearing

In written material provided before the hearing on 18 November 2021 (some of this material was provided on or about 12 September 2021 and other material was provided on or about 2 October 2021), Mr Sampson set out a list of the orders sought and an amended application. One of the amendments was the addition of reliance on s 44 (1) (b) of the RTA under which Mr Sampson sought an order for a reduction of 50% of the rent from the commencement of the tenancy until such time as the breaches were remedied. It was said that of this 50%, 30% of the reduction in rent was sought for failure to provide secure and ventilated premises.
In listing the orders sought in this written submission Mr Sampson also referred to orders under ss 187 (1) (b), (c), (d), (e), (f) & (2) (b). There was then added: Specifically Section 187 (1) (c) & (d) for $600 compensation.
It was explained in the submission that the $600 compensation figure was the amount of excess of the tenant's insurance which covered damage to floor coverage and furniture caused by the sewage overflow on 3 September 2021.
Earlier in the tenant's written submission, prior to these references to $600 compensation, Mr Sampson had said in relation to the orders sought under s 187, including s 187 (d), that he had paid a premium price for the premises and in return had been provided with a home that was not safe and secure or if made safe and secure, did not provide ventilation. Further, a major drawcard of the premises was a home theatre which did not work. As a result, it was said, much of the amenity of the premises was considerably reduced and impaired, the breaches were substantial and serious such that he sought compensation equivalent to 50% of the rent paid and that if this exceeded the amount prescribed by the regulations then he sought the maximum amount which the Tribunal could order.
Consistently, when asked by the Tribunal at the hearing what amount of compensation was sought, Mr Sampson indicated that the maximum amount of $15,000 was sought (transcript, page 28, line 49-page 29, line 12).
The written submission referred to a number of breaches of the RTA, including breaches of s 52 (1), ss 63 (1) and (2) and s 70.
Those sections provide as follows: 52 Landlord's general obligations for residential premises (1) A landlord must provide the residential premises in a reasonable state of cleanliness and fit for habitation by the tenant. (1A) Without limiting the circumstances in which residential premises are not fit for habitation, residential premises are not fit for habitation unless the residential premises - (a) are structurally sound, and (b) have adequate natural light or artificial lighting in each room of the premises other than a room that is intended to be used only for the purposes of storage or a garage, and (c) have adequate ventilation, and (d) are supplied with electricity or gas and have an adequate number of electricity outlet sockets or gas outlet sockets for the supply of lighting and heating to, and use of appliances in, the premises, and (e) have adequate plumbing and drainage, and (f) are connected to a water supply service or infrastructure that supplies water (including, but not limited to, a water bore or water tank) that is able to supply to the premises hot and cold water for drinking and ablution and cleaning activities, and (g) contain bathroom facilities, including toilet and washing facilities, that allow privacy for the user. (1B) For the purposes of subsection (1A) (a), residential premises are structurally sound only if the floors, ceilings, walls, supporting structures (including foundations), doors, windows, roof, stairs, balconies, balustrades and railings - (a) are in a reasonable state of repair, and (b) with respect to the floors, ceilings, walls and supporting structures - are not subject to significant dampness, and (c) with respect to the roof, ceilings and windows - do not allow water penetration into the premises, and (d) are not liable to collapse because they are rotted or otherwise defective. 63 Landlord's general obligation (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. 70 Locks and other security devices (1) A landlord must provide and maintain the locks or other security devices necessary to ensure that the residential premises are reasonably secure.
Section 44 (1) (b) of the RTA provides: 44 Tenant's remedies for excessive rent (1) Excessive rent orders The Tribunal may, on the application of a tenant, make any of the following orders - …… (b) an order that rent payable under an existing or proposed residential tenancy agreement is excessive, having regard to the reduction or withdrawal by the landlord of any goods, services or facilities provided with the residential premises and that, from a specified day, the rent for residential premises must not exceed a specified amount.
Section 187 (1) (d) confers power on the Tribunal to make an order for the payment of compensation. Section 187 (1) (c) confers power on the Tribunal to make an order for the payment of money.

The Tribunal's decision

In addition to an order to pay compensation in the amount of $15,000, the Tribunal also made the following orders: 2. The landlord is to immediately affix track locks to all the sliding doors so they can be locked open, and is to pay compensation to the tenant of $800 per week or part week after today until installed. 3. The landlord is to immediately repair the leaking skylight, and after today is to pay compensation to the tenant of $100 per week or part week after today until fixed. 4. The landlord is to immediately arrange trimming of the Trees adjacent to the pool and is to pay compensation to the tenant of $200 per week or part week after today until the work is completed. 5. The tenant is to give the landlord's trades access to the Premises to do the above work, on not less than 3 days'' notice. 6. The tenant may apply to have the matter re-listed before me for further orders if the landlord is not completed the above work by 28/2/22. 7. The tenant may apply to the Tribunal at any time up to 60 days after the above work is completed, for determination of the amount of compensation for the above repairs ordered to be completed after today in the event of a disagreement.
The Tribunal concluded that the matter was to be determined as a claim for compensation under s 187 (1) (c) or (d) arising from breach of the landlord's obligations under s 52 and s 63 of the RTA: at [2].
Having discussed the meaning and application of ss 52 and 63, the Tribunal said it was satisfied that the landlord was in breach of its obligations under these sections, as discussed later in its reasons: at [14], [16] and [20].
From the whole of the reasons, whilst it should have been made clearer, it appears that the Tribunal concluded that each of the defects complained of amounted to breaches of both s 52 and s 63, apart, perhaps, from the complaint about inability to lock the sliding doors when open.
As to the obligation under s 52, the Tribunal: 1. Applied the passage from Proudfoot v Hart (1890) 25 QBD 42, referred to in Anforth, Christensen & Adkins, Residential Tenancies Law and Practice, New South Wales, 7th ed, concerning the meaning of "fit for habitation", namely "… Such a state is to repair that the premises might be used and dwelt in not only with safety, but with reasonable comfort, by the class of persons by whom and for the sort of purpose for which, they were occupied.": at [9]. 2. Applied the reference in Anforth, Christensen & Adkins to assessing "fit for habitation" by contemporary standards and that it required a minimum standard below which the reasonable standard of repair could not drop: at [11]. 3. Concluded that the residential premises were luxury premises and the tenant had a reasonable expectation that none of the disrepair should exist at the start of the tenancy agreement: at [10].
As to the obligation under s 63, the Tribunal concluded that the section imposed strict liability upon the landlord which was not excused by delays by tradesmen or suppliers in carrying out repairs: at [18]. It also concluded that it did not accept that the extent of the delays experienced arose because of the Covid-19 lockdown: at [19].
The Tribunal addressed each of the claims in turn: at [21]-[31].
However, in assessing compensation the Tribunal limited itself to the following approach: 1. At the commencement of the reasons, it was said that compensation for breach of the agreement and ss 52 and 63 was $37,000.00 reduced to the maximum of $15,000.00: at [1]. The subsequent reasons did not explain how it arrived at the amount of $37,000.00 other than that it included amounts of $10,400.00, $600.00, $100.00 and $2,800 in respect of various items referred to below. Confusingly, near the end of the reasons, in contrast to the figure earlier mentioned of $37,000.00, the Tribunal said that it assessed the tenant's claims as at the date of hearing as amounting to $25,000.00. 2. In dealing with the claim for locks to the sliding doors, it said that past compensation was assessed at $10,400.00, with compensation continuing at $800.00 per week until the problem was remedied: at [22]. The Tribunal gave no indication as to how it had arrived at these amounts. It may be noted that $10,400.00 is 13 times $800.00 but there had been 16 weeks from the commencement of the tenancy to the date of the hearing. We also note that $800.00 is about 17% of the weekly rental of $4,763.00 and that $10,400.00 is about 13.6% of the rent payable from the commencement of the tenancy until the date of the hearing, but the Tribunal did not explain its assessment in this manner or otherwise indicate the basis for these figures. 3. In dealing with each of the other items, except for the sewage flow, the leaking skylight and the trees adjacent to the pool, all that the Tribunal stated was that the tenant succeeded in a claim for a stated period of weeks. No amount of compensation was identified: at [23], [24], [25], [26], [27], and [29]. 4. As to the sewage outflow, the Tribunal found damages, being the amount of the excess in respect of the tenant's insurance, namely the sum of $600.00: at [28]. 5. As to the leaking skylight, the Tribunal assessed loss as the amount of $600.00 based upon $100.00 per week for a six-week period and for compensation to continue at $100.00 per week until fixed. 6. As to the trees adjacent to the pool, the Tribunal assessed loss in the amount of $2,800.00 based on a period of 14 weeks at $200.00 per week and for compensation to continue to be payable at $200 per week until the breach was rectified.

The scope of the right of appeal

Under s 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), a party may appeal as of right to the Appeal Panel in an internal appeal on any question of law. In respect of any other grounds, in the case of an appeal from the Consumer and Commercial Division of the Tribunal, the appellant must satisfy the Appeal Panel that leave to appeal should be granted under cl 12 sch 4 of the NCAT Act on the basis that: … the appellant may have suffered a substantial miscarriage of justice because: (a) the decision of the Tribunal under appeal was not fair and equitable, or (b) the decision of the Tribunal under appeal was against the weight of evidence, or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with)
Even if these conditions for the grant of leave are satisfied, the Tribunal has a discretion concerning the grant of leave which it will ordinarily only exercise in the circumstances described in Collins v Urban [2014] NSWCATAP 17 at [84 (2)], namely. Ordinarily it is appropriate to grant leave to appeal only in matters that involve: 1 issues of principle; 2 questions of public importance or matters of administration or policy which might have general application; or 3 an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; 4 a factual error that was unreasonably arrived at and clearly mistaken; or the Tribunal having gone about the fact- finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed

Grounds of appeal

The appellant had no legal representation. In Cominos v Di Rico [2016] NSWCATAP 5 at [13], the Appeal Panel stated that it may be difficult for self-represented appellants to clearly express their grounds of appeal and that in such circumstances it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided, and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal. We have approached the appeal in this manner.

Error of law-inadequate reasons concerning compensation

As we mentioned at the hearing of the appeal and referred to above, plainly, there was a problem with the adequacy of the reasons concerning the assessment of the amount of compensation. As to the requirement for adequate reasons, see New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 per Bell P (as he then was) at [66], [71] - [75] and [77].
Apart from the claim for the insurance excess, the tenant's claim for compensation was for general damages for inconvenience, discomfort and disappointment: see Makowska v St George Community Housing Ltd [2020] NSWCATAP 159.
This necessarily called for estimation which only allowed for limited reasoning to be exposed; Orr per Bell P at [68]. Nevertheless, more was required than the bare statement of a total amount combined with some (but not all) of component amounts referenced only to periods in which the breach had been suffered.
Those parts of the orders made by the Tribunal that consisted of orders for compensation were affected by this error.

Other grounds of appeal-consideration

The Notice of Appeal discloses the following contentions of error by the Tribunal, which were outlined in support of the contention that the decision was not fair and equitable (we note that some of these contentions are properly seen as alleged errors of law).

Contention that tenant confined its case for compensation to $600 only

First, it was contended that the Tribunal erred in making orders which were not sought by the respondent, including awarding compensation well beyond the amount sought. We view this is an alleged error of law due to procedural unfairness.
It was said that the tenant sought compensation of $600.00 only in respect of the insurance claim excess but the Tribunal awarded $37,000, which it reduced to its jurisdictional limit. It was said that otherwise the tenant sought relief for excessive rent under s 44 of the RTA and for an order for repairs.
However, as we have pointed out above, the tenant made it sufficiently clear in its written material before the hearing that it was seeking compensation for breaches that was well in excess of $600.00 (which it identified as a particular cost), namely in an amount equal to 50% of the rent paid and that if this exceeded the maximum amount of the Tribunal's jurisdiction, then in the amount of the monetary limit that the Tribunal could award. We also note that at the hearing this was stated by Mr Sampson and no objection was taken by the landlord's agent.
Accordingly, we reject this ground of appeal.

Contention that Tribunal should have assessed compensation on the basis of the overall reduction in amenity

Secondly, it was contended that the Tribunal erred by awarding compensation in respect of each aspect of repairs, rather than a compensation award that reflected the overall reduction in amenity, which it said would have been nominal. We view this as an alleged error of law.
We do not agree. It was open to the Tribunal to assess compensation according to the impact of each breach whether it be a breach of the fit for habitation obligation or a breach of the obligation to provide the premises in a reasonable state of repair.

Alleged errors in conclusions as to breaches

Thirdly, it was contended that the Tribunal's conclusion that there were breaches of the obligations concerning fitness for habitation and provision of premises in a reasonable state of repair were affected by the following errors: 1. The Tribunal impermissibly concluded that because various repairs were necessary it followed that there were breaches of the fitness for habitation and provision of premises in a reasonable state of repair obligations. In our view, this is an alleged error of law in applying the wrong test. 2. The Tribunal erred in assessing what was a "reasonable state of repair" and "fit for habitation" by having regard to the amount of rental paid by and the luxury nature of the property. The fact that the property fell short of a "luxury" standard did not amount to a breach of the lease or the RTA Act. We view this as alleged error of law in applying the wrong test. 3. The Tribunal erred in finding that the sliding doors did not sufficiently allow for ventilation and were not sufficiently secure. It was said that the fact that there was not a further lock to secure the door in an open position was not a requirement under the RTA Act or the lease. It was said that if this was of any relevance that it was a matter for the tenant to determine when deciding whether the residence was suitable for his needs. We view this as encompassing both an alleged error of law and fact. As to error of law, we regard this as a contention that the Tribunal misunderstood the law or arrived at a conclusion that was legally unreasonable in the sense that no reasonable decision maker could have arrived at this conclusion.
We do not agree that the Tribunal reached the conclusions that it did about breaches by applying the wrong tests. Firstly, the reasons do not indicate that the Tribunal decided there were breaches of these provisions simply because repairs were necessary. Secondly, we see no error with the Tribunal taking into account the "luxury" nature of the premises reflected in the amount of the rental in its consideration as to whether or not there had been breaches of these provisions. The Tribunal applied a test as to "fit for habitation" that was reflected in the authorities and which referred to relevance of the reasonable comfort of the persons who were to occupy the premises. Furthermore, the tests permit a consideration of the reasonable expectations of the parties and, hence, a consideration of the nature of the premises and the size of the rental.

Alleged errors in conclusion that there was not adequate ventilation

As to the specific conclusion about ventilation and the order as to the locks to be provided, the Tribunal applied the specific requirement as to adequate ventilation for the purposes of "fit for habitation" set out in s 52 (1A) (c) of the RTA (set out above). It did not proceed on the basis that there was some specific security requirement in the RTA or in the residential tenancy agreement for the locks that it ordered to be provided. We do not agree that the Tribunal misunderstood the law about this.
Furthermore, we do not accept that no reasonable decision-maker could have reached the conclusion that the premises were not fit for habitation because of the absence of adequate ventilation. We consider that the Tribunal's conclusion was reasonably open on the material presented to it, as we outline below.
As to this, in written material provided before the hearing, Mr Sampson said that the most egregious and urgent breach was the failure to provide ventilation and security throughout the home. As to this, he relied upon s 70 (1) and s 52 (c) of the RTA. This was expanded upon as follows: The premises have sliding doors on the top 3 floors that lead onto balconies. All balconies can be easily accessed from the adjoining property. The 3rd level which has 2 bedrooms can also easily be accessed by anyone who comes in from the street via the neighbouring block of units or from the units themselves on the south of the premises. The rooms on all levels of the premises…-are of a "bunker" style relieved by large sliding doors leading onto balconies. All sliding doors have a standard Lockwood sliding door lock. The sliding doors can only be locked in a closed position. All rooms are air-conditioned. However, the only way for the rooms to have fresh air-ventilation-is by opening the sliding doors. On the top level is the master bedroom which is divided from the adjoining property by a brick wall approximately 1.5 m high-easily scaled. No windows exist in the bedroom. On the second level-the lounge room and kitchen-there are louvred windows near the kitchen which are near the ceiling but easily broken into when left unlocked in an open position. There is a dividing glass with the adjoining building which runs from approx. 2m high to about 1.1 m high where it joins the balcony glass. Easily scaleable [sic]. The 3rd level has the same divide. But worse-the balcony which leads onto the 2 bedrooms is easily accessible from the neighbouring block of units. There is no gate from the street on the block of 5 units at….And one can easily step over the fence from the block's front lawn onto the path that runs down the southern side of the premises…. One of the bedroom's [sic] on the 3rd level has a window at waist height to the southern footpath which has no security grill and no ability to lock when opened. The balcony is easily accessed from the footpath. The other bedroom has no windows. We have a choice- choose ventilation-access to fresh air and health- and expose ourselves to the risk of break and enter or choose security and face the very real and present risk of one of us being exposed to Covid and being forced to self-isolate and due to the fact that the noisy air-conditioning must be used for air circulation and temperature control-infect the entire household. The risks are more poignant for my family as we suffered a break and entry in the early hours about 8 weeks ago…. As I write this on Sunday 12th September, my step-daughter spent the night after the temperature rose during the day to 30° sleeping with her mother. The sliding door of her bedroom could not be open because of lack of security. It was hot in the air-conditioning was too noisy to leave on. Then there is the issue of the pandemic. Again-as I write this-friends of the family are in self-isolation. The NSW Government's guidance on ventilation to prevent the spread of Covid-19 is unambiguous: "Ventilation is the deliberate introduction of fresh air…. Indoor ventilation can be most easily improved by opening doors and windows.". The solution for health, ventilation and security is simple and cheap-dropdown bolts on the sliding doors which match the existing lock hardware. This is precisely what our neighbour occupying the adjoining property…. Has installed on all sliding doors on all levels… I have requested the Landlord fix the lack of ventilation or security issues since 9th of August and the Agent has variously said the Landlord would consider the proposal to rectify the problem, flatly denied a problem or fabricated bogus excuses such as installing locks would fracture the structural integrity of the doors and create waterproofing issues. The neighbour who is a builder and resides in the adjoining…. Kindly sent an email explaining the bolts do not provide a problem with waterproofing or structure but do provide security and ventilation… The email was forwarded to the Agent. To date, the agent has failed to respond. The total tax deductible cost for the Landlord to supply and install bolts and provide ventilation, security and peace of mind for my family? $242 gst incl. Please see email from BH Locksmiths which also says installation will not affect water-proofing or structural integrity… Despite repeated requests, the Landlord through the Agent has failed to act in breach of the Act and Lease. I request an order be made to install bolts requested or anything which will have the same affect [sic] of providing ventilation and security under Section 73 (a). …
The tenant's material included an email from his neighbour in the dual occupancy, Mr Crowley from Meridian Construction Services Pty Ltd, which stated that they had installed lockable drop-down bolts to all sliding doors in the house, which did not compromise the waterproofing and had such locks installed "100mm back so the door can be left open 100mm (but key locked) at night to provide ventilation. This was necessary as some of the rooms don't have any opening windows for ventilation."
Also included in the tenant's material was an email from BH Locksmiths sent on 10 September 2021 with a quote to install such locks to sliding doors of $242, including GST, and which stated that the holes drilled would not affect the waterproofing nor would it cause any structural damage to the sliding door frame.
At the hearing, Mr Sampson referred the Tribunal to the Oxford dictionary definition of "ventilation" as consisting of fresh air to a room or building (transcript, page 29, line 29).
At the hearing, all that was said about this claim by the landlord's agent, who represented Ms Nunez, was that: 1. The property was secure, the doors all lock closed and they did not believe there was a requirement to allow the tenant to be able to lock the doors slightly open for ventilation purposes. There was fully-ducted air-conditioning through the house for ventilation purposes if that was required (transcript, page 9, lines 10-16). 2. There were windows in the living room that were 10m from the ground which could be opened (transcript, page 30, line 27). 3. She, personally, did not have windows that could be locked open (transcript, page 30, line 28). 4. The bedrooms were elevated off the ground (transcript, page 30, line 30).
No evidence was presented on behalf of the landlord to the effect that there were sources of fresh air flow to the premises even when the sliding doors were locked which were sufficient to provide adequate ventilation.
In the landlord's "Dispute of Orders" written submissions (discussed further below) in support of a stay application made before the hearing of the appeal, which she said she relied upon for the appeal itself, the conclusion about ventilation was challenged on the basis of new factual assertions that were not presented to the Tribunal accompanied by new photographic evidence. At the hearing of the appeal, the landlord withdrew any reliance upon new evidence. Accordingly, the submissions about ventilation based upon this new evidence are rejected.

Contention that the order for installation of locks went beyond order sought by the tenant

Fourthly, at the hearing of the appeal, Ms Nunez submitted that the Tribunal's order (Order 2) that the relevant locks would be fixed to "all the sliding doors" went beyond what was sought by the tenant. No such contention had been made in the Notice of Appeal. In the written submissions relied upon, the landlord had contended that this order went beyond "the tenants initial request". However, it is apparent from the written account of the tenant's case as set out above that Mr Sampson sought the relevant locks to be fixed to all the sliding doors. We reject the contention that the Tribunal erred in this regard.

Contention that the appropriate remedy was an order for works only

Fifthly, it was contended that even if the landlord was in breach by such failure to provide adequate ventilation the appropriate remedy was an order for works to remedy the situation and not compensation. We view this as an alleged error of law in failing to apply the correct remedy.
There is no legal basis for this contention. It was open to the Tribunal to make both an order for works and award compensation in respect of the breach that had occurred.

Contention that compensation concerning lack of adequate ventilation was excessive

Sixthly, it was contended that compensation of $800 per week in respect of the ventilation issue arising from the sliding doors was excessive and unreasonable. We view this as encompassing both an alleged error of law and fact. As to error of law, we regard this as a contention that this conclusion as to quantum was legally unreasonable in the sense that no decision-maker could have reasonably arrived at this assessment.
On the appeal the landlord did not put forward any matters in support of this contention. Leaving aside the problem about inadequate reasons, which has led us to undertake our own assessment concerning compensation, as explained below, we do not accept that there was otherwise any appealable error, whether error of law or fact, concerning this quantum as assessed by the Tribunal.

Contention that the decision was against the weight of the evidence

Seventhly, it was contended that the decision of the Tribunal was against the weight of the evidence. This is an alleged error of fact. The landlord made no attempt in her submissions to demonstrate that the decision was against the weight of the evidence presented to the Tribunal, including to meet the test set out in Collins v Urban at [77] that the decision under appeal can be said to be "against the weight of evidence" within cl 12(1)(b) of sch 4 of the NCAT Act. This requires establishing that the evidence in its totality preponderates so strongly against the conclusion found by the Tribunal at first instance that it can be said that the conclusion was not one that a reasonable Tribunal member could reach. Accordingly, this contention is rejected.

The landlord's "Dispute of Orders" written submissions and oral submissions on appeal

In her "Dispute of Orders" and submissions and oral submissions at the hearing of the appeal, Ms Nunez put forward various arguments as to why she said Mr Sampson's claim should not succeed. She made these arguments without reference to the matters referred to in her Notice of Appeal or to the basis upon which there was appealable error of the nature we have described in these reasons. In substance, what Ms Nunez was seeking to do was to have a "second go" at running a defence to Mr Sampson's claims. This is not an opportunity that this appeal provides: see Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10].

Outcome of the appeal-quantum of compensation the only issue

The only appealable error we have identified is an error due to inadequate reasons concerning the assessment of compensation. That error requires that the existing orders for compensation be set aside and the amount of compensation be reassessed.
The tenant has not sought to challenge the quantum of the amounts assessed.
We are not concerned with examining any issue as to whether some continuing amount of compensation should be ordered until such time as the problems are fixed. In saying this, we note that in view of our decision about the inadequacy of reasons it was unnecessary for us to address any issue (not raised by the appellant) about the correctness of the Tribunal's approach to the orders for continuing compensation and whether this raised a problem in view of the monetary limit of the Tribunal's jurisdiction.
In such circumstances, where the amount of compensation remains the only unresolved issue between the parties, and where it seems to us that we are in as good a position as the Tribunal at first instance to assess the level of compensation to be awarded, we consider that we should proceed to conduct such an assessment for ourselves doing the best we can on the somewhat limited information presented by the parties, rather than remit the question to the Tribunal for redetermination. That approach is consistent with the guiding principle in s 36 (1) of the NCAT Act.
In this regard we have been provided with the material that the respondent relied upon at first instance in support of his claim for compensation, we have the transcript of the hearing at first instance and we have the material that both parties presented on appeal. It is notable that neither at the hearing at first instance nor in the material which the landlord had the opportunity to present on appeal did the landlord present any specific contentions about the quantum of compensation other than to deny that any compensation should be awarded and to say that the order for $800 per week in respect of the lack of ventilation was excessive or unreasonable.
We consider that it is appropriate to assess quantum by determining a notional rent reduction referable to the relevant breaches. This accords with the approach accepted by the Tribunal at first instance (not challenged on the appeal in that case) in Bhandari v Laming [2015] NSWCATAP 224 (see at [16]) in which compensation in respect of smoke infiltration of residential premises was quantified by the Tribunal as a percentage of the rent for the period that such inconvenience and discomfort was experienced.
This also accords with the guidance provided by the English Court of Appeal in English Churches Housing Group v Shine [2004] EWCA Civ 434 ("English Churches"), referred to in Anforth, Christensen & Adkins, (cited above) at 2.187.7. In that case, the Court approved the remarks by Morritt LJ in Wallace v Manchester City Council (1990) 30 HLR 1111 as follows: First, the question in all cases of damages for breach of an obligation to repair is what sum will, so far as money can, place the tenant in the position he would have been in if the obligation to repair had been duly performed by the landlord. Secondly, the answer to that question inevitably involves a comparison of the property as it was for the period when the landlord was in breach of its obligation with what it would have been if the obligation had been performed. Thirdly, the periods when the tenant remained in occupation of the property notwithstanding the breach of the obligation to repair the loss to him requiring compensation is the loss of comfort and convenience which results from living at the property which was not in the state of repair it ought to have been in if the landlord had performed his obligation. … Thus the question to be answered is what sum is required to compensate the tenant for the stress, inconvenience experienced because of the landlord's failure to perform his obligation to repair. Such sum may be ascertained in a number of different ways, including but not limited to a notional reduction in the rent. Some judges may prefer to use that method alone…; some may prefer a global award for discomfort and inconvenience… And others may prefer a mixture of the two…
The Court of Appeal in English Churches went on to say: 104 Whilst we accept that the guidelines helpfully set out by Morritt LJ… are not to be applied in a mechanistic or dogmatic way, and whilst we equally accept that there will be cases in which the level of distress or inconvenience experienced by a tenant may require an award in excess of the level of rental payable, we take the view that the plain inference of Morritt LJ's judgement, and the figures identified in the case itself, demonstrate that if an award of damages for stress and inconvenience arising from the landlord's breach of the implied covenant to repair is to exceed the level of rental payable, clear reasons need to be given by the court for taking that course, and the facts of the case-notably the conduct of the landlord-must warrant such an award. 105 It must, we think, always be remembered that an award of damages under LTA 1985 section 11 is an award for a breach of contract with the landlord, not for a tort committed by the landlord. It is, accordingly in our judgement logical that the calculation of the award of damages for stress and inconvenience should be related to the fact that the tenant is not getting proper value for the rent, which is being paid for defective premises. Moreover, the reason for the awards being modest is, it seems to us, related to the fact that the tenant in a secure weekly tenancy has the benefit of occupying premises at a rent, which is well below that which the same premises would be likely to command in the open market. [Our emphasis]
Having regard to the consideration that the tenant was not getting proper value for the rent being paid for the defective premises, our assessment of compensation is broken down as follows: 1. Inadequate ventilation for 17 weeks at $475 per week, being about 10% of the weekly rental = $8,075.00. 2. AVL equipment not working for 8 weeks at $700 per week, being about 15% of the weekly rental = $5,600.00. 3. Gas heaters not working for 5 weeks at $240 per week, being about 5% of the weekly rental = $1,200.00. 4. Trees not trimmed for 15 weeks after the date the landlord said they would be trimmed at $50 per week, being about 1% of the weekly rental = $750.00. 5. Leaking skylight first reported on 2 October 2021 and fixed some time after 18 November 2021 = $400.00, which is about 1% of rental paid over the period from 2 October 2021 to 27 November 2021. 6. Excess on insurance with respect to sewage leak = $600.00. 7. A nominal amount of $200.00 for inconvenience and disappointment due to faulty doors, repairs in the pool bathroom and cleaning of the BBQ. 8. Total of (1) to (7) = $16,825.00.
This assessment does not breach the monetary limit because the compensation is payable for separate claims of breaches in respect of each item: Bridgford v Brien [2017] NSWCATAP 111 at [43].
We have already set out the periods during which these breaches were experienced by the tenant.
Our notional rent reduction assessment in respect of the ventilation issue is founded upon the written account of Mr Sampson's case about ventilation (set out above) from which it is clear that, not unreasonably, it was a troubling issue for him and his family. The landlord's defence to this issue was that there was no breach. There was no suggestion by the landlord that if there was a breach this was not the cause of any material discomfort or disappointment. On appeal, as we already mentioned, the landlord contended that $800.00 per week compensation was excessive and unreasonable but did not provide any support for that suggestion. Nevertheless, we have adopted a lower figure. We do not consider much weight should be given to the Covid-19 point raised by the tenant because it was only the tenant's family who were present at the premises. Otherwise, there was limited, specific information provided by the tenant about the impact this problem had on them.
Our notional rent reduction assessment in respect of the AVL equipment issue is founded upon the following uncontested written material provided by the tenant before the hearing in which it was said: On the 8th August, the Agent was advised that appliances were not working in the Media/Home Theatre room. The Agent replied next day that the Landlord was not prepared to fix the sound system nor the projector (the Agent continually reduced the Home Theatre equipment to the projector-In fact, the projector was the one thing that was working) "should they stop working during the tenancy". The Home Theatre saga has gone through various iterations with the Landlord claiming it was a user issue, to sending over an electrician whose hobby is audio/visual to finally organising after receiving notice of the application to the Tribunal and audio/visual technician. Most of the equipment was found faulty and replaced on the 23rd September…. The Home Theatre was a significant contributor to the expensive rent…. being paid for the purposes of calling the premises home….
At the hearing, the landlord's agent took no issue with the tenant's position about the Home Theatre being a significant contributor to the rent. Nor was any issue taken with the Tribunal's assessment, which we regard as reasonable, that (at [23]): The media room operation has greater significance in the tenant's (and his partner and her daughter's) ability to enjoy the premises during the Lock-down which required them to remain inside the Premises.
Our notional rent reduction assessment in respect of the gas heaters issue is founded upon the Tribunal's unchallenged conclusion that (at [24]); The time they did not work was during winter, a time when most likely to be required for enjoyment of luxury Premises.
Our notional rent reduction assessment in respect of the trees' trimming issue is founded upon the reasonable, but low level of disappointment attributed to this issue, in circumstances where it was the uncontested fact that in an email from the landlord's agent on 28 July 2021 the tenant was told that the trees would be trimmed on 16 August 2021 but this was not done until 1 December 2021. However, the tenant did not present any evidence showing that this was a significant issue until the approach of summer as to which there was the uncontested finding by the Tribunal that the failure to trim was "more significant for the tenant (his partner and her daughter's) enjoyment of the pool with the approach of summer".
Our notional rent reduction assessment in respect of the leaking skylight is founded upon the common ground between the tenant and the landlord that there was need for repair, that this had only led to the occasional problem when it rained and that the leak that occurred was minor.
There was no real dispute on appeal about the award of $600.00 in respect of the excess on the insurance covering the sewage leak.
Finally, as to our notional assessment of $200.00 in respect of the faulty doors, repairs to the pool bathroom, fungus near the front door and cleaning of the BBQ, all of which were fixed within 6 weeks of the start of the tenancy, nothing in the material provided by the tenant indicates that these were anything other than minor, albeit somewhat annoying, problems.

Orders

For these reasons, we make the following orders: 1. The appeal is allowed in respect of the orders for compensation only. 2. Orders 1 and 7 made on 18 November 2021 are set aside. 3. Orders 2, 3 and 4, are set aside but only in so far as orders were made for the payment of compensation. 4. In substitution for the orders in respect of compensation made in Orders 1, 2, 3, 4 and 7 made on 18 November 2021 the appellant is to pay the respondent $16,825.00 within 7 days, less any amount of compensation already paid by the appellant to the respondent in respect of the orders made on 18 November 2021. 5. Liberty to the parties to apply to the Appeal Panel for an order as to the specific amount to be paid pursuant to Order 4 in the event there is any dispute about the amount of such compensation, if any, already paid by the appellant to the respondents. 6. The respondents' application for costs in respect of the appeal in the amount of $357.00 for the cost of obtaining the transcript is dismissed.
Our orders in respect of the amount of compensation to be paid take account of the possibility that the appellant may have paid some compensation as ordered on 18 November 2018 following the dismissal of her stay application on 15 December 2021. We note also that the respondents said in their written submission on appeal lodged on 28 January 2022 that despite repeated requests no compensation has been paid.
As to Order 6 concerning costs, this was the only order concerning costs of the appeal sought by either party. However, the amount in issue on the appeal was not shown to exceed $30,000.00, which is the amount that means that "special circumstances" were not needed for an order for costs to be made: Rule 38 of the Civil and Administrative Tribunal Rules 2014 and s 60 of the NCAT Act. The respondents did not put forward any basis for a conclusion that special circumstances existed.

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

Amendments 06 May 2022 - Pursuant to s 63 of the Civil and Administrative Tribunal Act 2013 (NSW) Order 4 has been altered so that it reads: "In substitution for the orders in respect of compensation made in Orders 1,2,3,4 and 7 made on 18 November 2021 the appellant is to pay the respondent $16,825.00 within 7 days, less any amount of compensation already paid by the appellant to the respondent in respect of the orders made on 18 November 2021". 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: 06 May 2022

Residential Tenancy Act 2010(NSW)

At a glance

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Judgment (22 paragraphs)

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Legislation Cited (3)

Cases Cited (7)

Cited By (3)