Perks, Olivia Alexandra (Tenant), and Crammond, Daniel (Tenant) v Boucher, Ron

A fire in the early hours of 13 April, 1997 significantly damaged

residential premises at .... One of the co-tenants Olivia Perks

seeks compensation from the landlord for her belongings damaged in

A Residential Tenancy Agreement in the standard form dated 16

February 1997 is produced. The Landlord is noted as R G Boucher

and the Tenant as Daniel Crammond and Olivia Perks with occupants

listed as Kylie Lovett and Alister Adam-Smith for premises ...; rent

is $430 per week for a fixed term of 12 months beginning 15

February 1997 and ending 13 February 1998 with a stated rental bond

of $1,720.00. The agreement was signed by the Landlord and was

signed by the Tenants. The parties agreed the premises were let for

Residential purposes. As there is a Residential Tenancy Agreement and

premises let for residential purposes the Tribunal has jurisdiction.

The application named the applicants as Olivia Alexandra Perks and

Kylie Lovett. The evidence disclosed that Ms Lovett had never been

a tenant but had been an occupant. The Tribunal amended the

application pursuant to Section 89 of the Residential Tenancies Act 1987

(the act) joining Daniel Crammond as an applicant tenant and

deleting Kylie Lovett as a party to the proceedings. This order was

made by consent. Olivia Perks is the only tenant who seeks

compensation. Mr Crammond and the occupants referred to in the

An applicant is required to lodge a claim within 30 days of a

breach or becoming aware of the breach (see Section 16(1) of the

act). As such the applicants claim was required to be lodged by 12

May 1997. It was lodged on 17 June 1997. The applicants sought

leave of the Tribunal for an extension of time pursuant to

Section 99 of the Act. Mr Boucher opposed the extension of time.

After considering the application the Tribunal extended time to the

date the application was lodged being 17 June 1997 pursuant to

Section 99 of the Act. The Tribunal gave reasons after hearing the

application and there is no need to repeat those reasons here:

except to say that Mr Boucher who has been assisted in the

preparation of his case by his loss assessors conceded he suffered

no prejudice in the defence of the claim should the time be

Applications relating to a breach of residential tenancy agreement.

16.(1) If a landlord or a tenant under a residential tenancy

claims that a breach of a term of the agreement has occurred, the

landlord or the tenant may, not later than 30 days after becoming

aware of the breach, apply to the Tribunal for an order in respect

(1A) If a landlord or a tenant under a residential tenancy

claims that a dispute has arisen under the agreement, the landlord

or the tenant may refer the dispute to the Tenancy Commissioner.

(1B) When a dispute is referred to the Tenancy Commissioner under

section, the Tenancy Commissioner may attempt to bring the

landlord and the tenant to a settlement acceptable to them.

(1C) If the landlord and tenant fail to make such a settlement,

or the tenant may, with the consent of the Tenancy Commissioner,

apply to the Tribunal for an order in respect of the dispute.

(1D) If a person who has paid, or required or received payment of,

reservation fee pending the making of a residential tenancy

agreement claims that a dispute has arisen in relation to the

reservation fee, the person may apply to the Tribunal for an order

respect of the dispute. The person may make the application

whether or not the prospective residential tenancy agreement was

(2) The Tribunal may, on application by a person under this

(i) restrains any action in breach of the residential tenancy

(ii) requires an action in performance of the agreement;

(b) an order for the payment of an amount of money;

(c) an order that a party to the residential tenancy agreement

such work or take such other steps as the order specifies to

(d) an order as to compensation, including (without limiting the

(ii) compensation where a landlord withholds or refuses consent

(iii) compensation for any other breach of the residential tenancy

(e) an order that requires payment of part or all of the rent

residential tenancy agreement into the Tribunal until the whole or

part of the agreement has been performed or any application for

(f) an order that requires payment (out of rent paid into the

towards the cost of remedying a breach of the residential tenancy

agreement or towards the amount of any compensation.

(3) An order under subsection (2) (a) may be made even though it

remedy in the nature of an injunction or order for specific

circumstances in which such a remedy would not otherwise be

(4) An application under this section may be made during the

after the termination of a residential tenancy agreement and may be

whether or not notice of termination has been given or an order

Landlord's responsibility for cleanliness and repairs.

25. (1) It is a term of every residential tenancy agreement that:

(a) the landlord shall provide the residential premises in a

state of cleanliness and fit for habitation by the tenant; and

(b) the landlord shall provide and maintain the residential premises

reasonable state of repair, having regard to the age of, rent

"residential premises'' includes everything provided with the premises

(whether under the residential tenancy agreement or not) for use by

An applicant must satisfy the Tribunal on the Civil onus the

respondent has breached the agreement to enable the applicant to

recover compensation - Section 16(1) and Section 16(2)(d)(iii) of the

act. The applicants claim is based on Section 25 of the act in

that it is alleged that the Landlord has failed to keep, provide

and maintain the premises in a reasonable state of repair. I do

not need to set out the evidence in full as the essential facts

are short and are agreed except that liability is disputed.

The tenants and occupants had complained of power failures. Sydney

Electricity was contacted and on 27 March 1997 issued a defect

notice for the premises specifying "defective 6 circuit 2 rate

compact switch-board." The landlord was advised of this. The landlord

attempted to contact his electrician to deal with the complaint.

There was some delay in having the electrician attend the premises.

Prior to the electrician attending and on the evening of 12 April

1997 an occupant of the house noticed a light flickering on the

upper floor followed by complete power failure throughout the house.

The occupant checked the switchboard and then turned off the lights.

In the early hours of 13 April 1997 the house was significantly

damaged by fire. The room occupied by Ms Perks suffered the most

damage. Her goods were damaged. The question to be answered in the

affirmative prior to Ms Perks being entitled to compensation is

whether or not the fire occurred as a result of the landlords

failure to provide and maintain the residential premises (premises)

in a reasonable state of repair. Report tendered and admitted into

evidence dated 8 July 1997 from NSW Fire Brigade notes the area of

fire origin as being "ceiling"; probable ignition factor was stated

briefly as "short circuit, ground fault in fixed wiring."

The landlord is insured. The landlords insurer denied liability to

Ms Perks. An assessment of the fire cause was commissioned by the

insurers from Associate Professor C Grantham, School of Electrical

Engineering, University of NSW. Professor Grantham sets out in great

detail his extensive qualifications in investigations of fire causes.

In Professor Grantham's report he concluded as follows:-

(a) The most severe damage was restricted to a single room this

upstairs room adjacent to the front street. Within this room it was

that the fire was a high burning fire with the most severe damage

(b) Damage to the ceiling joists was most severe in the centre of

one joist having burnt and fallen to the ground and with the joist

the missing joist burnt through in an area corresponding

(c) There was fire damaged electrical wiring in the area of most

damage in the centre of the room. This wiring was lighting circuit

and was traced back to the light switch for this room. There was

arc evidence on the fire damaged wiring. This arc evidence shows

there was power being supplied to this wire at the time of the

indicates that the source of the fire was close to the centre of

This suggested area of fire origin is consistent with the area of

(d) The area of most severe fire damage and the electrical arc

indicates strongly, in my opinion, that the fire was associated with

electric light connections in the centre of the room.

(e) Further evidence that the fire started from the electric light

that on the evening prior to the fire, tenant's of the premises

had trouble switching the light off and the light was flickering.

(f) In the meter panel of the building only one fuse associated

circuit had blown. This was presumably from the upstairs light

my opinion is further evidence that the fire started from the light

(g) A serious electrical fault was found to be developing in the

board/fuse assembly. However, it is my opinion that this fault

part in the fire in that it was associated with a power circuit

The loss adjuster for the landlord's insurer sought clarification

from Professor Grantham of that report. Professor Grantham in a

"With respect to your letter dated 10 July 1997 and the two

specific questions asked, the first point I would make is that the

two questions are effectively the same, because based on my

examination the fault associated with the switch-board/fuse-board was

so obvious that it would have been readily identified by an

electrician, whether or not a formal defect notice was issued. Had

the problem with the switch-board been attended to by an electrician

prior to the fire, it is my opinion that the fire would not have

been prevented. The reason for this is that a fault had clearly

developed in the switch-board and it was clear that this fault was

contained within the six circuit switch-board and was not related to

any electrical wiring or equipment external to the switch-board.

Had the switch-board been attended to by an electrician then it is

my opinion that he/she would simply have replaced the six circuit

switch-board because it was clearly not repairable. The existing

wiring would have been used and the electrician's work would have

been no more than a straight replacement of the damaged

In summary the landlords evidence is that the electrical fire arose

as a result of a fault for which the landlord was not aware and

could not have been aware. Even if the switchboard had been

attended to by an electrician prior to the fire the fire would not

have been prevented. On that basis the tenants application would

The Tribunal pointed out to Miss Perks the difficulty with liability

and sought further submissions in that regard. Miss Perks relied

upon a number of matters. Firstly she submitted the Tribunal could

infer the premises were not in a reasonable state of repair due to

other alleged inaction of the landlord such as failing to provide

adequate pest control for fleas. Mr Boucher denied there was such a

problem. That evidence is not relevant to the current determination.

Miss Perks submits the New South Wales Fire Brigade Report

illustrates the fire is caused by a fault in the electrical supply.

She further submits the report provided by Mr Grantham is limited

in its application because it was prepared after some debris and

other evidence had been removed from the scene, but that the report

confirmed a poor state of electrical wiring. That submission does

not adequately address Ms Perks evidentiary burden. The report of

the fire brigade is expressed as being "information... based on the

reporting officers observations at the time of the incident without

the benefit of scientific investigation." Professor Grantham says the

fire was associated with a power circuit in an undamaged area of

Professor Grantham's qualifications are set out in his extensive

"abbreviated" curriculum vitae. I cannot prefer the findings of a

qualified expert against observations without scientific investigations

unless there is some evidence supporting that finding. Mere

speculation on the tenant's part is insufficient. The report of

Professor Grantham does not provide evidence of a poor state of

I am not satisfied Ms Perks has demonstrated a breach of the

Residential Tenancy Agreement which was the cause of the fire which

damaged her goods. The tenant's applications fails.

Whether the tenant has other remedies other than in contract in

2. The Registrar is directed to return the exhibits.

Residential Tenancies Act 1987 s. 16Residential Tenancies Act 1987 s.