Sears v Turner

NCAT Consumer and Commercial|2023-09-07

Application and procedural history

On 13 June 2023, the applicant tenant applied for an order to extend time to lodge her substantive application pursuant to section 41 of the Civil and Administrative Tribunal Act 2013 (the Act)
In the substantive application she applied for compensation up to the jurisdictional limit of the Tribunal of $15,000.00 under section 187(1)(d) of the Residential Tenancies Act 2023 ("the RTA").
At the conciliation hearing on 24 July 2023, the tenant was granted leave to be represented by a tenant advocacy service, not a legal practitioner. In direction 9 made at conciliation hearing, and after clarification by the tenant, the Tribunal particularised that the tenant was seeking $1,000.00 for disputed electricity bills to be refunded and compensation for loss of breach of quiet enjoyment due to alleged breaches of the landlords obligation to carry out repairs. The extension of time issue related to the claim for breach of quiet enjoyment due to alleged failure to effect repairs. Neither party made submissions in relation to extension of time relating to the $1,000.00 claim for electricity bills. In file notes made by the member presiding at the conciliation hearing it was indicated that at the final contested hearing the parties were to address the time issue. In relation to lodgement of evidence for the final hearing, the tenant was also directed to lodge and serve a copy of all evidence by 14 August 2023. Between the conciliation and final hearing, the landlords sought an amendment of the date to lodge their evidence claiming that the tenant had not provided them with evidence until 24 August 2023. That application was not allowed but the landlords were given a later date to comply with directions in relation to their evidence.
At the beginning of the part-heard hearing, the parties were advised that for the sake of utility in meeting its primary objective to resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible, the Tribunal would hear submissions on the time issue first and then the substantive claim in case time was extended. By the end of the half-day allocation that had been set for hearing, the extension of time issue had been fully heard. The tenant had only briefly commenced her case on her substantive claim. As the matter was adjourned part-heard, the parties were notified that a decision on the extension of time question would be made prior to any further hearing. Self-evidently, if time to bring the application Is not extended there would be no need for a further hearing.

The law and extensions of time

The power to extend time is found in section 41 of the Act which provides: 41 EXTENSIONS OF TIME (1) The Tribunal may, of its own motion or on application by any person, extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation. (2) Such an application may be made even though the relevant period of time has expired.
The application to extend time has been made in writing as required under the rules.
Under subsection 41(1) of the Act, any period of time specified in any enabling legislation can be extended provided it is legislation within the Tribunal's jurisdiction. The Tribunal has jurisdiction to hear claims for compensation, non-economic loss, breaches of the duty to repair and utilities in a residential tenancy.
The tenant claims compensation at the jurisdictional limit for breaches of the landlord to comply with the obligation to repair the premises. The RTA imposes a time limitation period for the bringing a claim of compensation relating to breaches of residential tenancy agreements. Section 190 of the RTA states: 190 Applications relating to breaches of residential tenancy agreements (1) A landlord or a tenant may apply to the Tribunal for an order in relation to a breach of a residential tenancy agreement within the period prescribed by the regulations after the landlord or tenant becomes aware of the breach or within such other period as may be prescribed by the regulations. (2) An application may be made - (a) during or after the end of a residential tenancy agreement, and (b) whether or not a termination notice has been given or a termination order made.
Tenant gave vacant possession on 22 October 2022. The application was lodged 9 months after the end of the tenancy. Regulation 39 provides that a claim for compensation for alleged landlord breaches under section 190 must be lodged under a time limit. Regulation 39(9) requires lodgement "within 3 months after the applicant becomes aware of the breach". The use in the legislation of the words "becomes aware" means that time runs from the period the tenant first becomes aware of the breach. At issue in this case is when the tenant became aware of the alleged breach of repair and the consequent non-economic loss she alleged.
A member presiding has unfettered discretion to grant an extension of time but such direction must be exercised judicially. In Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22, an application for extension of time to lodge an appeal was considered. The Appeal Panel set out relevant judicial considerations to be considered for extensions of time generally at [22]: The considerations that will generally be relevant to the Appeal Panel's consideration of whether to grant an extension of time in which to lodge a Notice of Appeal include: …… (3) Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider: (a) The length of the delay; (b) The reason for the delay; (c) The appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and (d) The extent of any prejudice suffered by the respondent (to the appeal), - Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61at [55] (per Basten JA) but note also [14], Nanschild v Pratt [2011] NSWCA 85 at [39] to [42]; and (4) It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable - Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61 at [14] (per Hodgson JA, Ipp JA agreeing at [17]) and Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53 at [58] - [59].
The considerations outlined in Jackson were affirmed in Xpertise Construction Pty Ltd v Orantia [2023] NSWCATAP 22 (1 February 2023). In that matter an extension of time was not granted. The Panel stated at [3] "the absence of prospects of success in the appeal was a strong factor in refusing leave to extend time to appeal". At [43], the Appeal Panel further commented that "the mere suggestion that the appellants were obtaining legal advice does not adequately explain why it took about 3½ months to lodge an appeal".

The law in relation to the alleged breaches

Under section 63 of the RTA landlords have an obligation to provide and maintain premises in a reasonable state of repair, having regard to the age, rent payable and prospective life.
A more common tenant application for alleged breach of repair is for a rent reduction under section 44(1)(b) of the RTA for reduction or withdrawal by the landlord of any goods, services or facilities provided with the residential premises. The tenant's representative admitted this was not such a claim as section 44(1)(b) claims must be lodged before the tenancy ends. Instead, it was a claim for compensation for non-economic loss for failure of the landlord to repair. The Tribunal accepts that non-economic loss due to failure to repair, and the breach of quiet enjoyment that arises from that failure, could result in mental distress, inconvenience, disappointment and frustration.
However, in deciding whether to make an order for repair, pursuant to section 65(2) of the RTA the Tribunal may take into consideration whether the landlord failed to act with reasonable diligence to have the repair carried out.
Under section 65(3A) the Tribunal must not determine that a landlord has breached the obligation to repair and maintain unless it is satisfied that the landlord had notice of the need for the repair or ought reasonably to have known of the need for the repair. In other words, if a landlord has acted with diligence in carrying out repairs there is no breach. The Tribunal must not determine a landlord breach unless the tenant gave notice of the need for repair or the landlord ought to have known of the need for repair.

Time extension submissions and evidence of the parties

The parties' representatives provided written and oral submissions and evidence in respect of both the substantive claim and the issue of an extension of time. They questioned each other about their submissions and attached evidence. Both were asked questions by the member presiding from time to time. All this evidentiary material was considered in coming to this determination.
The tenant submitted that she vacated on 22 October 2022 when the key was returned. As the application was lodged on 13 June 2023, the tenant had not met the required time limit to lodge the application within 3 months of becoming aware of the alleged landlord breach. However, the tenant argued the breach was ongoing throughout the tenancy until vacant possession on 22 October 2022. Therefore, the tenants submitted, the proper date to calculate the issue of time commences on 22 February 2023, allegedly being 3 months from the tenant became aware of the breach. The Tribunal is aware that this is actually 4 months from vacant possession but accepts that this was more probably a slip on behalf of the tenant. On the tenant's submission, the correct date for time to commence would be 3 months after vacant possession, being 22 January 2023. It was submitted the real question of time and any delay in lodging ran from 22 January 2023 until 13 June 2023.
It was submitted that an extension of time would cause no prejudice to the landlords who had self-managed the tenancy for more than 7 years. An agent had only been engaged in August 2023, long after the tenancy had ended.
It was submitted that repair issues were ongoing throughout the tenancy and made more complex by the fact that another dwelling was being constructed on the property during the tenancy.
It was submitted that complexities in the communication pathways between the parties during the tenancy contributed to delay and complexity in the matter. The tenant mostly communicated with the landlords by text message during the tenancy. It was alleged that once having communicated issues by text message the tenant understood that repairs were to be done. It was also stated that most repairs were carried out by the landlords themselves. Use of trades to carry out repairs was only occasional. The main repairs allegedly not done were failure to rectify water ingress into the premises or to provide premises that were structurally sound.
It was submitted that delay the tenant in this period had arisen as the tenant has been deaf since birth. She required specialist needs for communicating orally and in writing. Indeed, she appeared at the formal hearing with the invaluable assistance of 2 Auslan interpreters. She submitted delay was caused due to her having to take steps to acquire assistance of interpreters and for the extra time taken to communicate with them.
The tenant also sought legal advice from the tenant advocate service further adding to delay. Obtaining such advice and representation took several sessions, the process being delayed by the need to work through Auslan interpreters. Delay in obtaining legal advice had been further exacerbated by the fact that the advocate offices had been destroyed in the catastrophic floods in the Northern Rivers that occurred at the end of February 2022. Not only was the office rendered uninhabitable, but staff were directly impacted. In addition, demand for the advocacy services greatly increased as was the amount of time needed to attend to each matter due to the usual circumstances. The advocacy service was not able to advise the tenant in its normal time frame.
It was further submitted that the tenant suffered from mental health conditions that further contributed to delay. It was asserted she suffered from post-traumatic stress disorder, anxiety and depression. No medical records were supplied to prove these assertions. The tenant's representative indicated that when the tenant gave her evidence-in-chief she would give oral evidence about the conditions. As the matter was part heard, this did not occur.
It was further asserted that the tenant was a sole carer for her young son. This too added to delay in providing instruction to submit the application.
Landlords submitted that delays were very substantial and unreasonably long. Even if one accepted that breaches were ongoing until 22 October 2022, which was not accepted, the application had no been lodged for 9 months, not 3 after the end of the tenancy.
Further, it was argued that the evidence showed the last time the tenant notified any need for repair was on 5 May 2020. If the landlords had failed to carry out this repair in breach of their obligations, the tenant ought to have been being aware of the breach since that date and ought to have lodged within 3 months of that date. Instead, the application date was nearly 3 years after. This was unreasonably long delay and time should not be extended. A perusal of the 5 May 2020 text notification (page 61 tenant documents) refers to repairs required for a power box, hot water, lights inoperable and leaking taps in bathroom. Landlords submitted there was no mention of the water ingress or structural unsoundness for which the tenant claimed in this application. In addition, landlords gave evidence that the issues raised in the repairs were repaired on 22 May 2020. An invoice full repairs carried out by a qualified plumber shows works were done to leaking taps and a valve causing issues for the hot water system (page 46 landlord documents).
The member presiding asked the tenant 's representative to take the Tribunal to any evidence of notifications of the need for repair after 22 May 2020. The tenant relied on various photos (pages 38-51 tenant documents). She alleged she took the photos of the premises and attached them to a text message to the agent. Some photos were stills taken from a video of the premises. The photos allegedly taken on 22 February 2022 showed holes in guttering and water pooling outside the premises. She asserted she texted this material requesting repairs on 22 February 2022. The alleged text attaching photos was not in the tenant's evidence for hearing provided under procedural directions. The landlords' representative denied the photos were of the residential premises.
The representative was again asked to take the Tribunal to any other evidence of notification of repairs after May 2020. Some text messages dated January 2020 were referred to. There were no text messages after May 2020 in the tenant's evidence bundle.
However, shortly before the final hearing of this matter, the tenant swore a statutory declaration on 23 August 2023. This declaration refers to events between February 2015 up until 2020 when the tenant said lights stopped working.
The landlords' representative also took the Tribunal to the written initiating application. The application listed repairs that had allegedly not been done. No mention of guttering was made in the application. In relation to the issues of water ingress and structural unsoundness, the initiating application stated that there was presence of mould and floors, walls and roof were not sealed property. It was submitted the tenant's application was confused and such confusion had occurred due to the passing of time.
Landlords further asserted the time should not be extended as the tenant caused further delay by failing to comply with directions made at the conciliation hearing for lodgement of documents. Documents were lodged on 24 August 2023 which was 10 days later then ordered by the Tribunal.
Landlords also submitted time should not be extended as the tenant allegedly breached an order made at the conciliation hearing for the tenant to not have a representative that was a legal practitioner. A letter dated 15 August 2023 from the tenant's advice and advocacy service at Lismore indicated the service represented the tenant. The letter was signed by legal practitioner at the advocacy service.

Findings and determination

The Tribunal does not accept the landlords' submissions that time should not be extended because the tenant supplied evidence 10 days later than allowed under the direction made. Landlords were given an opportunity to supply their evidence at a later date and they had ample opportunity to consider the tenant's evidence.
Nor does the Tribunal accept the tenant failed to comply with the direction to not seek legal representation. The fact that the advocate service letter was signed by a legal practitioner was due to that practitioner being an employee of the tenant advocacy service. That practitioner did not represent her at hearing. In any event, it is difficult see what relevance this issue has to the extension of time question.
Being mindful of the disastrous impact the floods of February 2022 had on the Northern Rivers, the Tribunal accepts that delay would have resulted in the tenant being able to obtain legal advice.
The Tribunal further accepts that further delay occurred due to the particular aural issues of the tenant and the need for Auslan interpreters. There would have been considerable delay lodging an application due to the time taken for giving instructions. The Tribunal there was reasonable explanation of the delay between vacant possession and the lodging of the application some 9 months later.
But the Tribunal does not accept the submission the time issue only runs from 3 months after vacant possession so that delay was only a matter of some 4 to 5 months.
The parties referred to evidence limited to 2 dates in their submissions on time extension, being 5 May 2020 and 22 February 2022. As mentioned above, in the authorities cited in relation to extensions of time sate than an important consideration in deciding whether to grant an extension is the strength or prospects of success of the party seeking the extension. To establish what evidence would have been relied on in the substantive case, and the prospects of success based on that evidence, the member presiding reviewed other documents and evidence of the parties not directly referred to in oral submissions of either representative.
The landlord's agent opined the premises were 80 years old. In the tenant's documents there are no text messages after 5 May 2020 notifying the need for repair, despite the submission communications were by text message due to the tenant's hearing issues. Text messages in July 2020 show there was a difference of opinion regarding a rent increase to $340.00 a week. Prior to that rent had not been increased for 5 years. A written statement of an electrician stated electrical repairs had been done at the premises for a period of 9 years. That electrician attended the premises on numerous occasions to repair power issues, fuses, TV points, fans and lights. Following tenant complaint about the hot water system on a number of occasions, after attendance at the premises the electrician found the system to be working correctly and with no fault. Discussions were texted between the parties over power bills as far back as January 2019. The Tribunal is satisfied the tenant would have become aware of any breach in relation to power more than 3.5 years before lodging the application. A builder who was engaged to undertake maintenance work at the premises on 13 April 2022 gave a written statement. He said that when he arrived at the property on that date to replace the guttering he was met with hostility by the tenant. Despite this, the work was completed. As the builder commenced other maintenance work, he was ordered off the property by the tenant. The Tribunal finds from this evidence, the guttering work was repaired diligently on 13 April 2022. Further, the Tribunal accepts that in relation to any other maintenance work which may have related to structural soundness the tenant denied the landlords' repairer access to carry out the work. The landlords cannot be in breach of their obligation to carry out repairs when it is the tenant that has prevented access to the repairer to carry out such repairs.
Further, in the absence of any evidence from the tenant over the 5 May 2022 text message, the power and electrical issues raised in that text were repaired diligently. It is also more probable than not that the tenant did not lodge any application to the Tribunal for breach of quiet enjoyment and compensation within either 3 months of February or May 2022 because the guttering work at least had been repaired.
In addition, regarding the claim over disputed power bills there was a written statement in the landlords' evidence that the parties entered in agreement for the tenant to be paid $20.00 weekly if electricity were used from her premises for building a cabin on another area of the block. That witness guide evidence that the tenant agreed to this payment. That witness also saw a landlord paying the tenant's partner this amount. That witness stated the tenant was often around the site and in good humour and never raised the issue of electricity at that time.
Landlords also had written evidence dated 4 July 2023 from the tenant that replaced Ms Sears at the premises. Those tenants commented that the property was very dirty when they took possession. Landlords cleaned the property. Landlords also acted in good time in repairing an issue relating to heating and installed a reverse cycle air conditioner within two days of notification of the issue.
The Tribunal finds from this evidence not referred to by the representatives during oral submissions that the weight of the evidence for the substantive claim would tip the balance of probabilities in favour of a finding that it is more probable than not that after 5 May 2020 the landlords carried out repairs diligently even where they had not been informed of the need for repairs by the tenant but may have been aware repairs were necessary.
The wording of the legislation in relation to time is specific. Regulation 39(9) states for compensation for breach of the agreement must be lodged is within 3 months after the applicant becomes aware of the breach. Use of the "becomes aware" in the legislation suggests the time runs from when the tenant first became aware of the breach or at least in some temporal period around that time unless evidence can show why nothing was done around that time. The Tribunal finds that the tenant first became aware, or ought t have become aware on her own case of the breach on which she relies long before the date of vacant possession as submitted by her. Even if one accepts the tenant's position that the need for repair was notified on 22 February 2022, time would have run from 22 May 2022. In other words, the tenant did not launch the application for over 12 months. However, the Tribunal does not accept that the tenant notified of the need for a repair of the guttering or structural work at the premises as there was no text message in evidence attaching the photos taken by her around that date in which she requests repairs. Worse still for the tenant, even if such evidence had been supplied the written statement of the of the electrician that attended the premises on 13 April 2022 to carry out repairs shows that the guttering was repaired. As to any other structural repairs required the tenant refused access to the repairer. Any non-economic loss caused by mental distress arising from alleged lack of repair of which the tenant became aware at that time was caused by her own action to refuse access.
But in the absence of any text message showing notification of the repair on 22 February 2022, the Tribunal accepts the landlords' submission that the last notification they had of the need for repair was on 5 May 2020. Consequently, time under the three-month limitation ran from 5 August 2020. The delay in bringing the application was nearly three years, not 3 months as allowed.
Such a long and extensive delay requires the Tribunal to consider the strength of the tenant's case and her prospects of success if an extension of time were granted. As indicated in the authorities stated the tenant must show that her case for breach of the agreement has more substantial merit than merely being fairly arguable. The prospects of her case are poor. The failure to provide any evidence at all after May 2020 in her statutory declaration prepared only shortly before hearing the tenant's prospects are negligible. This is particularly true because by the time this statutory declaration was sworn, the tenant would have been fully advised of the issues in relation to her claim. It is more probable than not that no evidence was given after 2020 because there was not substantial evidence to show what had occurred apart from the contested evidence that was given about what took place on 5 May 2020 and 22 February 2022. The Tribunal is satisfied that the tenant's substantive case does not meet the standard of being fairly arguable, let alone having substantial merit.
The delay is so extensive it ought not be remediated by grant of extension of time. Prospects of success and the merits in the substantive case are so poor there is no justification to extend time.

Order

The following order is made: 1. Pursuant to section 41 of the Civil and Administrative Tribunal Act 2013, the tenant's application to extend the period of time for lodging the application to 13 June 2023 is dismissed.

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: 09 October 2023

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Judgment (7 paragraphs)

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