Rainsford v NSW Land and Housing Corporation [2018] NSWCATAP 8 | Case summary

Notice of Appeal and history of appeal proceedings

The appellant appealed the order dismissing his application by Notice of Appeal filed 24 May 2017. The Notice of Appeal was filed in time, being 14 days from the date the appellant received notice of the decision.
The Notice of Appeal raised various grounds of appeal that can be summarised as follows: 1. The Tribunal was in error in concluding the presence of the bolts did not demonstrate a breach of the RT Act because the bolts presence is evidence somebody had entered the premises; 2. The Tribunal was in error in concluding that the landlord's ability to enter the premises to carry out urgent repairs authorised the neighbour to do so; 3. It was not necessary for the neighbour to enter the property to fix the gate, an alternative method being the installation of a post on the neighbour's side of the fence. 4. The Tribunal incorrectly applied the test in Australian Provincial Assurance Co Ltd v Coroneo (1938) 38 SR (NSW) 701 in concluding the gate was a fixture; 5. Section 49 of the RT Act gave the appellant exclusive possession all parts of the premises, including his side of the fence and allowing the neighbour to "store anything online premises" (a reference to the bolts in the fence) constitutes a breach of s 55 and amounts to a failure by the landlord to stop a neighbour using the premises; 6. The Tribunal was in error in determining the damages claim was disproportionate. 7. The Tribunal was in error in admitting the evidence of Mr McKee, who was not present for cross examination.
The grounds of appeal also included the following statement: The claim to the Fence and Noise, is because the hole had only become a problem recently, due to the wind blowing the gate to and fro, moving the latch in the fence 4 inches, banging on the fence and making the hole bigger. Now that I had to remedy that myself, the Landlord allowed the neighbour to do, nearly the exact thing again. So the noise in the attachment to the fence was caused by the landlord, allowing the neighbour to erect a latch for their gate in an incorrect way. Sect 50(2) a simple search of the internet, or better yet, on YouTube: (how to erect a gate) will prove I am right about how to erect a gate. The member erred in stating there are two holes, there are four holes, two have neighbours property illegally stored and placed through the holes, into my property of which I have all legal rights to. sect 49(2). (spelling corrected)
On appeal, the appellant seeks orders that the bolts and brackets be removed from the property, that the fence be repaired and a compensation order for $10,000.
The appellant made written submissions in support of his appeal. In addition he attended by telephone at the hearing the appeal and made oral submissions.
The effect of his submissions can be summarised as follows: 1. The placement of bolt in the fence means that he no longer has vacant possession of all parts of the premises. This constitutes a breach of s49(2) of the RT Act (Landlord's obligation to provide vacant possession). 2. Because the bolts have been left on the premises with the consent of the landlord and because the gate causes unnecessary noise, this constitutes a breach by the landlord of s 50(2) of the RT Act (Landlord not to interfere with tenant's quiet enjoyment). 3. Having regard to the photographic evidence of the position of the bolts in the fence, somebody must have entered the premises to place the bolts in the fence from the appellant's side. Consequently, the Tribunal's conclusion that there was no evidence of such an entry was in error. Consequently, the entry constituted a contravention by the respondent of s 55 of the RT Act (Access generally by landlord to residential premises without consent). In this regard the appellant said the respondent was responsible for the actions of a neighbour who entered the premises to do any work to the fence.
In making these submissions about what occurred, the appellant said at paragraph 8A of his written submissions: I did not enlarge the hole in the fence, and the fence is not old wood palings, this is a new fence, which the landlord has allowed the neighbour to use as a stop for his gate, firstly by refusing to do anything about the noise it made, before I remedied it myself, by cutting the bolt, secondly by allowing the neighbour to do nearly the exact thing, by attaching the gate to the fence again, in my view to allow the neighbour to make noise, as it is not the normal way a gate is attached.
The respondent filed a Reply to Appeal and written submissions in reply. The respondent appeared by counsel at the hearing of the appeal and made oral submissions. In short, the respondent submitted: 1. There was no act of the respondent which constituted a breach of the agreement or the RT Act. 2. There was no relevant error of the Tribunal in dismissing the appellant's claim. 3. The respondent had not carried out any work to the fence and the grant of permission to the neighbour to attach fitments to the fence was not a breach of the agreement or the RT Act. There was no evidence to support a conclusion to the contrary. Any work done by the neighbour that created a noise was work for which the neighbour, and not the respondent, was liable. 4. In any event, the neighbour fixing bolts to the fence does not in any way deny exclusive possession to all parts of the premises and does not constitute a breach of s 49 of the RT Act. 5. The challenges made by the appellant raise grounds for which leave is required and the circumstances justifying the grant of leave have not been established by the appellant. In this regard the respondent relies on Sch4 Cl 12 of the Civil and Administrative Tribunal Act, 2013 (NCAT Act) and the decision of Collins v Urban [2014] NSWCATAP 17 which sets out the principles applicable to the grant of leave. 6. In relation to the evidence of Mr McKee, this evidence was not relied upon and there no practical injustice demonstrated to show there had been a relevant denial of procedural fairness.

Consideration

This appeal involves a consideration of whether or not the respondent breached its obligation as a landlord pursuant to the agreement and the RT Act and, if so, what orders was the appellant entitled to have made in his favour.
The Tribunal dismissed the tenant's application because: 1. The appellant had not demonstrated how the presence of the bolts represented a breach of the RT Act: at [12]; 2. The work undertaken to the fence about which complaint was made was to repair a latch for a gate on the neighbour's property and, to the extent necessary, s55(1)(b) would permit a landlord to enter the premises without notice or consent to affect urgent repairs: at [15]; 3. The state of repair of the gate on the neighbour's property was the responsibility of the neighbour, rather than the landlord: at [22]; 4. The presence of the holes in the fence and/or the failure to repair did not constitute a breach of maintaining the premises in a reasonable state of repair having regard to the limited photographic evidence, the age of the premises and the appellant's concession that "the hole was probably there before I moved in". Consequently, there was no breach of s63(3) of the RT Act: at [23]; 5. There was no breach by the respondent of its obligations under s 50 not to interfere with the appellants right of quiet enjoyment because any noise was a result of the banging of the gate on the neighbour's property: at [24].
It is appropriate to record relevant facts in relation to this appeal which do not appear to be in dispute. They are: 1. The respondent gave permission to the neighbour to attach a fitment to the fence and/or to repair fitments to the fence for the purpose of latching a gate located on the neighbour's property which the neighbour owned: reasons at [14]. 2. At some stage, the appellant cut and removed some of the bolts in the fence. He has stored these bolts and claims storage costs based on a quote which he has received from a local storage company: see extract from the Notice of Appeal set out above. 3. The respondent did not carry out any of the work in question. Rather, the work was carried out by the neighbour: see appellant's original application to the Tribunal, an extract of which is set out above.
The appellant essentially asserts breaches of four sections of the RT Act, which themselves are terms of the agreement. These are ss 49, 50, 55 and 63
It is unclear whether a breach of s 49 was raised in the original application. Be that as it may, the matter can be dealt with shortly.
Section 49(2) provides: (2) A landlord must ensure that the tenant has vacant possession of any part of the residential premises to which the tenant has a right of exclusive possession on the day on which the tenant is entitled to occupy those premises under the residential tenancy agreement.
The complaint that this section has been breached in the circumstances of this case is misconceived.
As is evident from this section, the obligation is to provide vacant possession "on the day on which the tenant is entitled to occupy (the) premises". There is no dispute the appellant's entitlement to exclusive possession of these premises. There is no suggestion that when the tenant first occupied the premises he was not given vacant possession and there is no evidence to this effect. It follows no breach is established.
Further, and in any event, the installation of bolts in a fence could not in any relevant sense derogate from the appellant's right to vacant possession. Accordingly, this ground of appeal fails.
The second alleged breach arises in relation to s 50 of the RT Act. This section provides: 50 Tenant's right to quiet enjoyment (1) A tenant is entitled to quiet enjoyment of the residential premises without interruption by the landlord or any person claiming by, through or under the landlord or having superior title (such as a head landlord) to that of the landlord. (2) A landlord or landlord's agent must not interfere with, or cause or permit any interference with, the reasonable peace, comfort or privacy of the tenant in using the residential premises. …. (3) A landlord or landlord's agent must take all reasonable steps to ensure that the landlord's other neighbouring tenants do not interfere with the reasonable peace, comfort or privacy of the tenant in using the residential premises. (4) This section is a term of every residential tenancy agreement.
As recorded above, the appellant said in his original application to the Tribunal that the "neighbour caused damage to the dividing fence, which will bang and rattle in the wind". The Tribunal found any noise about which complaint is made arises from the banging of the gate on the neighbour's property. The Tribunal did not accept that any noise emanated from the fence itself and that the complaint concerning repairing holes in the fence was an issue discrete from any noise complaint: reasons at [24].
There is no evidence to suggest the neighbour is a tenant of the respondent. Rather, it appears the neighbour independently owns the adjoining property.
The facts of this case do not support a conclusion that the landlord or its agent has in any way interfered with, or caused or permitted any interference with, the reasonable peace, comfort or privacy of the tenant in using the residential premises. As the neighbour is not a tenant of the respondent, the provision in s 50(3) can have no application.
The findings of fact which the Tribunal made as to the source of the noise, being the gate and not the fence, were findings open to it on the evidence. A challenge to this finding of fact requires leave of the Appeal Panel and the appellant must demonstrate he may have suffered a substantial miscarriage of justice: see Sch 4 cl 12.
In Collins the Appeal Panel said at [77]-[79]: 77 As to the particular grounds in cl 12(1)(a) and (b), without seeking to be exhaustive in any way, the authorities establish that: (1) If there has been a denial of procedural fairness the decision under appeal can be said to have been "not fair and equitable" - Hutchings v CTTT [2008] NSWSC 717 at [35], Atkinson v Crowley [2011] NSWCA 194 at [12]. (2) The decision under appeal can be said to be "against the weight of evidence" (which is an expression also used to describe a ground upon which a jury verdict can be set aside) where 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 - Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33 at 41-42, Mainteck Services Pty Limited v Stein Heurtey SA [2013] NSWSC 266 at [153]. 78 If in either of those circumstances the appellant may have been deprived of a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved then the Appeal Panel may be satisfied that the appellant may have suffered a substantial miscarriage of justice because the decision was not fair and equitable or because the decision was against the weight of the evidence. 79 In order to show that a party has been deprived of a "significant possibility" or a "chance which was fairly open" of achieving a different and more favourable result because of one of the circumstances referred to in cl 12(1)(a), (b) or (c), it will be generally be necessary for the party to explain what its case would have been and show that it was fairly arguable. If the party fails to do this, even if there has been a denial of procedural fairness, the Appeal Panel may conclude that it is not satisfied that any substantial miscarriage of justice may have occurred - see the general discussion in Kyriakou v Long [2013] NSWSC 1890 at [32] ff concerning the corresponding provisions of s 68 of the CTTT Act and especially at [46] and [55].
Applying these principles, it could not be said that the evidence in its totality preponderates against the conclusion reached by the Tribunal nor that the appellant has been denied a significant opportunity of a different outcome. Rather, insofar as any nuisance has been created or maintained, it arises from the conduct of the neighbour and not the respondent.
It follows that this ground of appeal fails.
The third breach relates to the landlord's obligations under s 55 of the RT Act. Relevantly, this section provides: 55 Access generally by landlord to residential premises without consent (1) A landlord, the landlord's agent or any other person authorised by the landlord may enter residential premises during a residential tenancy agreement without the consent of the tenant, and without giving notice to the tenant, only in the following circumstances: …, (b) to carry out urgent repairs, … (2) A landlord, the landlord's agent or any other person authorised by the landlord may enter residential premises during a residential tenancy agreement without the consent of the tenant, after giving notice to the tenant, only in the following circumstances: … (b) to carry out or assess the need for necessary repairs (other than urgent repairs) to, or maintenance of, the residential premises, if the tenant has been given not less than 2 days notice each time, …. (4) This section is a term of every residential tenancy agreement.
The appellant said the respondent was liable for the actions of the neighbour because the neighbour fitted within the definition of "any other person authorised by the landlord" to enter upon the land.
There are a number of problems with this submission.
First, the authority granted by the respondent to the neighbour recorded in the reasons at [14] was to effect "repairs to the side gate that adjoins the common fence". There is no finding or evidence to suggest an authority was given to enter upon the premises to do so. Rather, any such entry required the neighbour to speak to the appellant and the respondent to obtain appropriate permission at the time the entry was made. Whether or not this occurred is not a matter relevant to the present dispute.
Secondly, and in any event, the Tribunal found that because of the "disabled bolt latch", the gate on the neighbour's property was insecure and urgent repairs were required. Consequently, s 55(1)(b) permitted entry without notice or consent: at [15].
In relation to the finding of the need for urgent repairs, again this is a finding of fact available to the Tribunal on the evidence before it. Indeed, having regard to the submissions of the appellant, he himself believed that there was an urgent need to secure the gate to stop it banging.
There was no challenge to this finding of fact.
It follows that no breach of s 55 has been established and this aspect of the appeal therefore fails.
The final breach to deal with is in relation to s 63 of the RT Act. This section provides: 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. … (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.
The Tribunal found that the holes which the appellant contended needed to be repaired were "located on the indent of a panel halfway up the fence" and that "the top one is barely discernible". In respect of the holes, the Tribunal also said that one of the holes had been enlarged by the appellant in removing a bolt. The Tribunal found there was limited photographic evidence depicting the age of the premises. Consequently, in the absence of evidence concerning current rent and the prospective life of the premises and having regard to the photographic evidence concerning the location and size of the holes the Tribunal was not satisfied there had been any relevant failure to repair and maintain: at [23].
Whether or not the appellant had, by his actions, enlarged one of the holes is beside the point. What is significant is that the Tribunal concluded as a matter of fact that the fence was not in a state of disrepair and did not require any maintenance work to be performed. It did so in circumstances where it also found any noise arose from the banging of the gate located on the neighbour's property, rather than any defect in the fence itself.
Again, these were findings available to the Tribunal on the facts before it and we can discern no error in the Tribunal's decision. There is no basis to conclude the findings of fact were against the weight of evidence or that the decision was not fair and equitable and therefore no reason to grant leave to challenge any relevant findings of fact.
Accordingly, this ground of appeal fails.
Having regard to the conclusions that we have reached, there is no need to consider the claim for damages. However, we should indicate for completeness that we are not satisfied the appellant has suffered any relevant loss or damage in consequence of the removal and storage of the bolts.
Firstly, the removal of the bolts appears to have been work undertaken by the appellant without the consent of the respondent. Therefore, any cost to him arose from his own conduct and not as a result of any breach by the respondent of its obligations under the agreement or the RT Act. Secondly, there is no evidence that the appellant in fact incurred any charges for storage and any loss or damage suffered should properly be calculated by reference to his loss of use of the premises or loss of benefit under the agreement. There was no relevant evidence of such losses produced at the original hearing.
Consequently, even if the appellant had established a relevant breach by the respondent, no relevant loss or damage has been proved.

Rainsford v NSW Land and Housing Corporation

At a glance

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Judgment (6 paragraphs)

Parties

Cases Cited (7)