Rowe v NSW Land and Housing Corporation

NCAT Consumer and Commercial|2024-01-31

Outline

The applicant (the tenant) sought (1) a 40% rent reduction for the period from 31 January 2021 to date "and ongoing until this issue has been completely resolved", the issue said to be the effect on her tenancy of her neighbour's cats, plus the cost of items purchased to deal with that issue, and (2) costs.
It was determined that the tenant (1) was entitled to compensation of $500, but (2) was not entitled to recover the costs of the proceedings.

The hearing

The tenant presented her own case. Ms Brown represented the respondent (the landlord). The parties were advised that the three stages of the hearing would be (1) identifying the documents to be admitted as evidence, (2) any questioning of the other party's witnesses, and (3) submissions as to what should be the outcome of the case and why.
Documents received from the tenant on 22 November 2023 were admitted as Exhibit A and documents received from the landlord on 11 January 2024 were admitted as Exhibit R.
As Ms Brown did not seek to ask any questions of the tenant, the only cross-examination was one question that the tenant asked Ms Brown.
Submissions followed the usual sequence, which in this case was tenant then landlord then tenant in reply, so that each party was able to not only speak in support of their case but also respond to the case of the other party.

Jurisdiction

It is clear there was a residential tenancy agreement between the parties with the result that the Residential Tenancies Act 2010 (the RTA) applies, and the Tribunal has jurisdiction to hear and determine this application.

Relevant law

This is a renewal application and the provision in the Civil and Administrative Tribunal Act 2013 (CATA) which allows proceedings to be renewed is Clause 8 of Schedule 4 which provides: (1) If the Tribunal makes an order in the exercise of a Division function in proceedings, the Tribunal may, when the order is made or later give leave to the person in whose favour the order is made to renew the proceedings if the order made is not complied within the period specified by the Tribunal. (2) If an order has not been complied with within the period specified by the Tribunal the person in whose favour the order was made may renew the proceedings to which the order relates by lodging a notice with the Tribunal, within 12 months after the end of the period, stating that the order has not been complied with. (3) The provisions of this Act apply to a notice lodged in accordance with subclause (2) as if the notice were a new application made in accordance with this Act. (4) When proceedings have been renewed in accordance with this clause, the Tribunal: (a) May make any other appropriate order under this Act or enabling legislation as it could have made when the matter was originally determined, or (b) May refuse to make such an order. (5) This clause does not apply if: (a) The operation of an order has been suspended, or (b) The order is or has been the subject of an appeal.
The words quoted above have been considered in earlier decisions which establish principles that can be applied to this case. In Bondarek v NSW Land and Housing Corporation [2018] NSWCATAP 299 at [44-45], it was noted that a renewal hearing does not involve a re-hearing of the initial application but instead requires a consideration of what to do next when there has been non-compliance with the earlier order.
Minifie v Maxwell [2020] NSWCATAP 30 at [37]-[41] set out principles that were summarised as follows in The Owners Strata Plan No 79642 v Five D Pty Ltd [2020] NSWCATAP 110 as follows: 1. Renewal proceedings are a simple and practical method of enforcing and promoting compliance with Tribunal orders. 2. Jurisdiction arises if a party in "whose favour" an order has been made brings proceedings within 1 year of the date compliance with the order was due; and proves that order has not been fully complied with. 3. If the order has not been fully complied with (or not complied with at all), the Tribunal must focus upon what, if any, appropriate orders should be made to do justice between the parties, with reference to the original order made and all subsequent circumstances. 4. A renewal hearing is not a re-hearing of the original dispute, or a re-consideration of the merits of the original dispute; but to consider what to do next given the non-compliance with the original order. 5. In appropriate circumstances, in a renewal application the Tribunal may consider causes of action and remedies which were not available in the original proceedings.
Simply stated, renewal proceedings are a way the Tribunal can deal with non-compliance with an earlier order by putting a party in the same position as if there had been compliance with that order.
In the RTA, section 44 provides, in subsection (1), for rent to be reduced, and, in subsection (2) or for there to be an abatement of rent: (1) Reduction in goods, services or facilities The tenant may make a written request to the landlord at any time for a reduction in rent if the landlord reduces or withdraws any goods, services or facilities provided with the residential premises, even if those goods, services or facilities are provided under a separate or a previous contract, agreement or arrangement. (2) Premises unusable The rent payable under a residential tenancy agreement abates if residential premises under a residential tenancy agreement are- (a) otherwise than as a result of a breach of an agreement, destroyed or become wholly or partly uninhabitable, or (b) cease to be lawfully usable as a residence, or (c) appropriated or acquired by any authority by compulsory process.
In this case, the landlord has not reduced or withdrawn any service, so section 44(1) does not apply. Further, the tenant's complaint does not fall within any of the three paragraphs of section 44(2).
Accordingly, the question is whether there has been a breach of either (1) a clause in the lease, (2) a section in the RTA, or (3) an order of the Tribunal.
Clause 6 of the tenancy agreement, so far as is presently relevant, provides as follows: The landlord agrees: … 6.2 that the landlord or the landlord's agent will not interfere, or cause or permit any interference, with the peace, comfort or privacy of the tenant in using the premises.
In the RTA, section 50(2) imposes a requirement in the same terms as clause 6.2. That section goes on to require, in section 50(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."
On 1 September 2023, in proceedings commenced by the tenant against the landlord, an order was made, by consent, for the landlord to comply with the terms and conditions of the residential tenancy agreement, and that order was expressed in similar terms to cause 6.2 and s 50(2) of the RTA.

Issues

It follows that the issues requiring determination in these proceedings are: 1. Did the landlord permit an interference with the peace, comfort or privacy of the tenant in using the premises (ie the house and the surrounding land)? This issue raises the question of whether the landlord breached any or all of (a) clause 6.2 of the lease, (b) section 50(2) of the RTA, or (c) the consent order made on 1 September 2023. 2. Did the landlord take all reasonable steps to ensure that the landlord's neighbouring tenant did not interfere with the reasonable peace, comfort or privacy of the tenant in using the residential premises? This issue raises whether the landlord breached s 50(3) of the RTA. 3. If the answer to either (1) or (2) is yes, what compensation is the tenant entitled to be awarded? This issue raises the question of what amount should be awarded if the tenant has proved a breach. 4. If the tenant is successful in these proceedings, is she entitled to an order for costs? This issue involves a consideration of section 60 of the CATA.

Tenant's evidence

Exhibit A contained (1) a four-page document headed "Compensation Request" (A1, ie from page 1 in Exhibit A), (2) two pages relating to pets (A8), the source not being identified but seemingly documents published by the landlord, (3) emails and letters (A10), (4) photos (A24), and (5) invoices (A31).

Landlord's evidence

Exhibit R contained copies of (1) a tenancy agreement (R1), (2) a birth certificate page (R13), (3) a statement of Ms Brown dated 11 December 2023 (R14), (4) an order made by the Tribunal on 1 September 2023 (R15), and (5) a report dated 11 October 2023 from an occupational therapist (R16).
The only question asked of Ms Brown in cross-examination was why the landlord took out a specific performance order against the tenant's neighbour to which the answer was that it was the result of information provided by the tenant which suggested she had been to the property and had noticed three cats in that neighbour's property.

Tenant's submissions

The tenant suggest she was entitled to compensation for 3½ years and said that the landlord had a policy regarding pets and that, when signing her lease, there was a statement regarding pets. Reference was made to the words of clause 27.1 and clause 27.2 of that lease.
It was alleged that cats owned by the tenant's neighbour dug up her garden, attacked her birds, made holes in screen doors, and left faeces on her property every day. Their conduct was said to occur "24/7" and that the tenant had tried to deter them, but nothing works. The tenant's case was that the landlord should follow its policy and that the tenant should not have to put up with such a situation.

Landlord's submissions

On behalf of the landlord, it was noted that they had been to the neighbour's property on several occasions, but had not sighted the cats, with the result that it was difficult to prove the cats were those of the neighbour. It was said that the landlord had done what it could to assist the tenant, which included installing a concrete ramp, so she did not have to walk through her garden. It was noted the Companion Animals Act 1998 (NSW) applied and said that the landlord had done all it could do.

Submissions in reply

The tenant maintained that the landlord was aware of the problem because they obtained a specific performance order against the neighbour and that the landlord had asked the neighbour to keep any cats inside after 6pm.

Consideration

Directions were made for the parties to lodge the documents upon which they rely at the hearing, which should have included all the evidence upon which the parties relied. That reflects the approach of the Tribunal to have the evidence submitted prior to the hearing, so that each party is aware of the evidence upon which the other party relies. It would be procedurally unfair to decide an application by treating as evidence what was said during submissions, as that would constitute what might be called 'ambush evidence' to which the other side cannot respond, especially if included in submissions in reply.
Further, that there was no signed witness statement, statutory declaration, or affidavit in the tenant's documents (Exhibit A). Recognising that the tenant was self-represented, the Tribunal has treated what appears at A4-8 as containing the evidence the tenant wished to give in support of her application. However, consistent with what was said by McHugh J in Fox v Percy [2003] HCA 22 at [30-31], the Tribunal places greater weight on contemporary documents, sent or received at the time of relevant events, rather than what is asserted after legal proceedings have been commenced.
While a self-represented litigant cannot be expected to have an extensive understanding of how legal proceedings operate, it should be clear to any applicant that it is for the party seeking an order to prove their case. In criminal proceedings, it is for the prosecution to prove that the accused committed a criminal offence, and that case must be proved beyond reasonable doubt. In civil proceedings, such as this application, it is for the applicant to prove her case on the balance of probabilities, ie more likely than not.
In these proceedings, the tenant claimed a rent reduction of 40% from 31 January 2021 but did not provide any evidence as to what that rent was or what rent was paid. Her compensation request included a sentence which read: "Housing to produce a record of the rent paid during the mentioned period" but those words did not oblige the landlord to do so.
The tenant did not even provide a copy of her residential tenancy agreement. Fortunately for her, the landlord submitted a copy of the residential tenancy agreement dated 19 January 2007 which showed that the weekly rent at that time was $180. The Tribunal has no way of knowing how that rent changed in the period of just over 16 years from that date to the date of the hearing.
It is not uncommon in Tribunal hearings for parties to seek to prove their case by tending photographs (photos). The question which then arises is what do those photos prove?
By way of illustration, if a person provides a family photo to a stranger, that stranger would not know when the photo was taken, who or what is shown in that photo, and what it is suggested that photo shows. Accordingly, a photo may prove very little unless it is accompanied by evidence as to (1) when that photo was taken, (2) what is shown in that photo, and (3) how it is suggested that photo provides support for the case of the party tendering that photo.
Set out below is a chronology, based on the documents admitted as evidence in these proceedings, using the abbreviations L for landlord, T for tenant, and DCJ for the Department of Communities and Justice: 19 Jan 07 A residential tenancy agreement was made between the parties 10 Nov 17 Date L published a fact sheet regarding pets 31 Jan 21 Date from which T seeks a 40% rent reduction 31 Jan 21 T sent email to L, complaining about neighbour's cats 05 Jul 21 T sent email to L, complaining about neighbour's cats 04 Jan 22 T sent email to L, complaining about neighbour's cats 05 Feb 22 T sent email to L, complaining about neighbour's cats 20 Mar 22 T sent email to L, complaining about neighbour's cats 21 Apr 22 T sent email to office of her local State MP regarding the cats 26 Apr 22 Reply, indicating they had spoken to L who will call T 31 May 22 T sent email to L, complaining about neighbour's cats 15 Jun 22 T sent email to L, complaining about neighbour's cats 20 Nov 22 T sent email the Secretary of DCJ 12 Dec 22 Reply, saying investigation completed and action has been taken 28 Mar 23 Reply to 11 Mar 23 communication from T to local DCJ office 16 Aug 23 The last time the landlord's fact sheet regarding pets was updated 01 Sep 23 Consent order made in earlier proceedings between the parties 11 Oct 23 An occupational therapist conducted an assessment 11 Oct 23 A report, based on that assessment, was provided 11 Dec 23 Date of statement made by Ms Brown
From the evidence, having regard to the submissions of the parties, the Tribunal makes the following findings of fact: 1. The tenant resides in premises in Wallsend which became the subject of a residential tenancy on 19 January 2007. 2. The initial rent for those premises was $180 per week. 3. Since 31 January 2021 the tenant has been complaining to the landlord in relation to the behaviour of cats on her property. 4. That behaviour has included cats: (a) roaming around on the premises occupied by the tenant, (b) lying on those premises, including the driveway, (c) making noise late at night, (d) trying to attack the tenant's birds, (e) damaging the screen door on the premises, (f) fighting on the tenant's front landing at around midnight, (g) using the tenant's premises as a toilet, (h) as a result, creating a need for cleaning by the tenant, (i) sleeping on a bench at the front of the premises, and (j) damaging a rose bush planted in memory of the tenant's mother. 5. As a result, the tenant has taken steps to try to stop the cats from going onto the premises where she lives. 6. The landlord has arranged visits to the premises to try to address the problems the tenant has experienced in relation to the cats. 7. On a date not established by the evidence, the landlord obtained a specific performance order against the tenant's neighbour in relation to the cats. 8. As such an order could only be obtained either by consent of the neighbour or if the landlord proved the cats to be those of the neighbour, it is a reasonable inference that the cats in question belong to that neighbour. 9. As such an order could only be obtained if there was a residential tenancy agreement between the landlord and the neighbour, it is a reasonable inference that there is a residential tenancy agreement between the landlord and the tenant's neighbour. 10. It is therefore a reasonable inference that there is a term of that residential tenancy agreement that is in the same or similar form to clause 27 of the residential tenancy agreement between the tenant and the landlord. 11. A fact sheet last published by the landlord on 10 November 2017, and last updated on 16 August 2023 set out the basis upon which the landlord permitted its tenants to have pets. 12. On 1 September 2023 the tenant obtained a specific performance order against the landlord in relation to the cats. 13. On 11 October 2023 the landlord obtained a report which suggested modifications to the subject premises, but those modifications were related to the tenant's mobility issues and were not expressed as being intended to address the tenant's problems with the cats.
Clause 27 of the residential tenancy agreement between the landlord and the tenant is in the following terms: 27.1 The landlord agrees the tenant may keep pets in the residential premises if the pets do not interfere with the reasonable peace, comfort, and privacy of neighbours. 27.2 The tenant agrees to remove any pet, within 48 hours, where in the reasonable opinion of the landlord, the pet is not suitable to be kept on the premises and the landlord gives the tenant written notice to that effect. 27.3 Clauses 27.1 and 27.2 do not apply to restricted dogs as defined by the Companion Animals Act 1998 or dogs declared as dangerous pursuant to that Act. The tenant must not keep any such dogs on the premises.
The landlord's document headed "Factsheets" specified that tenants were allowed to have pet if: … "The pets do not interfere with the reasonable peace, comfort or privacy of neighbours." … "If your animal causes a nuisance or annoyance to neighbours, we may require you to remove your pet."
The landlord's page headed "During a Tenancy" includes the following words, in bold type: If an animal belonging to a DCJ Housing tenant causes a nuisance or annoyance to neighbours, or is not suitable for the property, DCJ Housing will ask the tenant to remove it within 48 hours. Failure to remove the pet when asked to do so is a breach of the tenancy agreement, and may result in action being taken through the NSW Civil and Administrative Tribunal.
In these circumstances, the Tribunal determines: 1. The landlord has not asked the tenant's neighbour to remove the cats from her premises within 48 hours. 2. The landlord has not given a written notice to that effect to the neighbour. 3. That is despite a specific performance order being made against the neighbour and that order having been breached. 4. That is despite a specific order having been made, by consent, on 1 September 2023 against the landlord. 5. The landlord has thereby permitted an interference with (a) the peace, (b) the comfort, and (c) the privacy of the tenant in using the premises. 6. That constitutes a breach of (a) clause 6.2 of the lease, (b) section 50(2) of the RTA, and (c) the consent order made on 1 September 2023. 7. Further, the landlord has thereby failed to take "ALL reasonable steps" (emphasis added), in breach of section 50(3) of the RTA.
It must be observed that, if the landlord issued a written notice to the neighbour which resulted in either that neighbour or the landlord commencing proceedings in the Tribunal, the tenant would doubtless be a willing witness in support of the landlord in any such proceedings.
Having determined the first issue in favour of the tenant, it becomes necessary to consider what compensation the tenant should be awarded.
Assessing the appropriate amount of compensation in situations such as this is not a task that can be approached with any level of precision.
Gallagher v Masters Installation Pty Ltd [2017] NSWCATAP 117 (Gallagher) is often cited in support of the proposition that, in circumstances where precision is not possible, the Tribunal must do the best it can on the basis of the available evidence. By reference to what was said in that case at [49-51], the distinction is between the principle that difficulty of assessment is not a barrier, as indicated in Commonweatlh v Amann Aviation Pty Ltd [1991] HCA 54, and the situation in Gerrard v Slamar [2004] WASC 253 where there was a lack of evidence and an estimate or guess should not be made to make good that omission. Pacorp Holdings Pty Ltd v Waller [2017] NSWCATAP 167 at [58] is but one example of the application of what was said in Gallagher and the position was succinctly stated in that case as being that "provided that some evidence of loss or damage has been produced, difficulty of assessment is not a bar to the assessment of damages, and where precise evidence is not available, the court or tribunal must do the best it can."
Doing the best it can with the available evidence, the Tribunal considers the assessment should be undertaken by reference to a weekly amount and a period of time. The difficulty with a weekly amount is that the Tribunal has no evidence of the current weekly rent and cannot guess that figure: the reality is that the evidence does not establish any amount more than $180 per week.
Given that the tenant was still able to live within the house on the premises and that the effect on her tenancy has been matters of noise while she is within the house and inconvenience when she is outside that house, the Tribunal considers the claimed of 40% to be excessive and allows 10%, which is $18 per week.
As to the period, the parties agreed on 1 September 2023 to try to finalise the issue which is the subject of these proceedings by agreeing to a consent order. The Tribunal considers the tenant should be awarded compensation from that date to the date of these orders.
The period from 1 September 2023 to the date of these orders spans 22 weeks. Multiplying $18 by 22 weeks gives $396 which the Tribunal rounds to $400.
The tenant also made claims for money said to have been spent on products purchased to try to stop the cats coming onto the subject premises. However, no receipts have been provided and the Tribunal has no more than assertions in a document that is not even a signed witness statement. There is only a single photo showing the shelf price of some of the product to which reference was made in the tenant's request for compensation which suggests Scat costs either $11.44 or $17.67, and that Keep Off, to which there was specific reference in the tenant's documents, costs $21.62.
It is not reasonable to assess a substantial amount in the absence of appropriate supporting evidence. Again, doing the best it can on the available evidence, the Tribunal considers a reasonable amount to allow for this aspect of the tenant's claim is $100.
As a result, the Tribunal determines that the tenant is entitled to compensation of $500. The Tribunal does not consider it appropriate to make any assessment of compensation for a future period. It is to be hoped that the issue raised by these proceedings will be addressed without the need for a further application to the Tribunal by either party.
It remains to consider the third issue, namely the costs of the proceedings.

Costs

The invoices for (1) the $15 fee paid when the application was filed (A31), (2) the $4.00 paid for photocopying (A32), and (3) $2.60 for photos (A33), which total $21.60, relate to the costs of the proceedings and are not matters that fall within the claim for compensation. Those are the costs the tenant claims.
The effect of s 60 of the CATA is that s 60(1) provides that "Each party to proceedings in the Tribunal is to pay the party's own costs" but s 60(2) relaxes that default position by providing that "The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs". The following non-exhaustive list of considerations is set out in s 60(3): (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings, (b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings, (c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law, (d) the nature and complexity of the proceedings, (e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance, (f) whether a party has refused or failed to comply with the duty imposed by section 36(3), (g) any other matter the Tribunal considers relevant.
It is well-established that the adjective "special" requires circumstances that are out of the ordinary but do not need to be extraordinary or exceptional: Megerditchian v Kumond Homes Pty Ltd [2014] NSWCATAP 120. It is also necessary to consider not only whether there are special circumstances but also whether those circumstances warrant an award of costs: Fitzpatrick Investments Pty Ltd v Chief Commissioner of State Revenue [2015] NSWCATAD 103 at [21].
Since s 60(2) commences with the words "The Tribunal may award costs ...", it is clear the Tribunal has a discretion which must be exercised (BPU v NSW Trustee & Guardian [2016] NSWCATAP 87 at [9]). That discretion must be exercised judicially (eMove Pty Ltd v Dickinson [2015] NSWCATAP 94 at [48]), and not either arbitrarily or capriciously (Oshlack v Richmond River Council [1998] HCA 11 at [22]).
Having considered the nature of this application, the history of these proceedings, and the evidence, the Tribunal does not consider this application involves any special circumstances.
This was a straightforward application with limited issues and a low volume of evidence. None of the factors set out in section 60(3) appears to apply. Further, even if it could be said there were special circumstances, no order for costs is warranted where the landlord has taken steps to deal with the problem which gave rise to these proceedings and the amount of costs incurred is $21.60.

Conclusion

Simply stated, the Tribunal considers the tenant is entitled to compensation of $500 but is not entitled to an order for the landlord to pay her costs. It is convenient to note that it will be open to the tenant and the landlord to agree for the landlord to provide the tenant with a rent credit for that amount, but that is a matter best left for them to consider.

Orders

For the reasons set out above, the following orders are made: 1. The respondent is to pay the applicant $500.00 immediately. 2. Each party is to pay their own costs.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 October 2024

At a glance

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Judgment (15 paragraphs)

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Legislation Cited (3)

Cases Cited (13)