The applicant submitted that the Tribunal, at first instance, erred in its application of s 65 of the Residential Tenancies Act 1995 and the test contained in s 65(2) was not applied.

The respondent submitted that the door slamming issue has been prolonged for a substantial length of time and is problematic for other occupants of the unit complex, and therefore, it constitutes a clear breach of his right to quiet enjoyment.

Held, setting aside the original Order and substituting a new decision:

• - The application for fresh evidence and the confidentiality order are granted;
• - Section 65(2) of the RTA creates a summary offence where, if the landlord's conduct amounts to harassment then they may be prosecuted for that conduct. This provision is entirely separate to the tenant's right to bring an application to the Tribunal seeking orders in relation to the landlord's breach of the right to quiet enjoyment;
• - In determining whether a tenant's right to quiet enjoyment has been breached an objective test must be applied, it is not appropriate to take into account a tenant's pre-existing medical condition; and
• - The evidence does not establish that the door slamming at the property has interfered with the respondent's quiet enjoyment of his unit.

Internal review - Tenant's entitlement - Quiet enjoyment

Internal review - Preliminary applications - Fresh evidence - Granted

Internal review - Preliminary applications - Confidentiality order - Granted

South Australian Civil and Administrative Tribunal Act 2013 ss 8, 39, 60, 70

Residential Tenancies Act 1995 ss 5, 65, 68, 78, 110

Re AKS [2016] SACAT 19

Martins Camera Corner Pty Ltd v Hotel Mayfair Ltd (1976) 2 NSWLR 15

Ingram v Department of Housing (Tenancy) [2002] NSWCTTT 84

South Australian Housing Trust v B [2005] SARTT 5

Kingsley and Thorne v Living Choice Woodcroft [2017] SACAT 16

Aussie Traveller Pty Ltd v Marklea Pty Ltd (1997) QA 2

McC v Director of Housing (Residential Tenancies) [2009] VCAT 2748

R_asheed v Wan & Alphabet Solutions Pty Ltd_ [1997] SARTT 69

LPY and JZG, South Australian Housing Authority, for the applicant

A request by the respondent for anonymisation of their representatives at the hearing has been granted by the Principal Registrar.

Made under the South Australian Civil and Administrative Tribunal Act 2013 s 70(6)(c)(i)

1. This is an application for leave to apply for an internal review. It is also the consideration of the application for internal review of the Order made by the Tribunal on 7 October 2020 in matter number 2020/SH006420 (the original Order).
2. In the original Order, Member King found that the South Australian Housing Authority (SAHA) was in breach of the obligation to provide Mr Ivancic with quiet enjoyment of his property, and she ordered SAHA to pay $400.00 to him as compensation for the inconvenience suffered by Mr Ivancic as a result of the breach.
3. SAHA disagrees with the original Order and has sought a review under s 70 South Australian Civil and Administrative Tribunal Act 2013 (the SACAT Act).

1. SAHA sought to introduce fresh evidence at the review hearing, being the evidence of one of their employees who has responsibility for the day to day management of Mr Ivancic's tenancy (the SAHA property manager).
2. LPY and JZG submitted that SAHA had been taken by surprise at the original hearing conducted by Member King as Mr Ivancic's application did not disclose particulars of each issue in relation to which Mr Ivancic said that his right to quiet enjoyment had been breached, and it was not until the original hearing was actually taking place that Mr Ivancic explained properly for the first time the specific issues which he said were in breach of his right to quiet enjoyment.
3. The application was disputed by Mr Ivancic who said that the SAHA property manager had participated in the original hearing and it was not necessary for him to give more detailed evidence as part of the review process.
4. In Re AKS[1] Justice Parker made the following comments about the issue of admitting new evidence in a review hearing conducted under s 70 SACAT Act:
   1. Section 70 requires the Tribunal to adopt the following approach when conducting an internal review:
      • it must examine the initial decision in light of the evidence or material before the Tribunal at the time that decision was made (s 70(4));
      • it may, as it thinks fit, allow further evidence or material to be presented to it (s 70(4));
      • it must reach the correct or preferable decision (s 70(5)); and
      • it must have regard to, and give appropriate weight to, the decision of the Tribunal at first instance (s 70(5))....
   2. The effect of s 70(4) is that all evidence received by the first instance decision maker is received in evidence on the internal review and must be taken into account when the internal review is conducted .......
   3. When the Tribunal considers the exercise of its discretion to allow the presentation of further evidence it will be relevant whether that material was reasonably available if diligent enquiries had been pursued before the first instance hearing (that being a key element of the approach adopted by appellate courts when determining whether fresh evidence should be admitted on appeal).[8] However, in my view this consideration will generally have much less weight in the context of proceedings before the Tribunal than it would have before an appellate court.
   4. I hold that view for several reasons. First, SACAT is a tribunal visited with administrative power and not a court exercising judicial power. Secondly, the rules of evidence do not apply (see s 39(1)(b) SACAT Act). Thirdly, the proceedings, particularly at first instance, are conducted on a relatively informal basis (see s 8(1)(f)). Fourthly, the great majority of parties are not legally represented before the Tribunal and, in my observation, often have little understanding of how best to go about advancing or proving their case. Finally, and most importantly, the Tribunal is required to arrive at the correct or preferable decision. That obligation must not be frustrated by overly strict insistence on compliance with the principles applied by appellate courts to the admission of fresh evidence.
   5. For completeness, I note that the other considerations applied by appellate courts in deciding whether to admit further evidence on appeal are that the new evidence is credible and may have affected the outcome of the proceedings.[9] In my view, those two considerations are relevant when SACAT exercises its discretion to admit further evidence at the internal review stage.
5. Although SAHA could have sought an adjournment at the original hearing in order to obtain the fresh evidence, I consider that the Tribunal should have dealt with the application in such a way as to ensure that either the grounds of the application were fully particularised before the full hearing, or SAHA was provided with a fair opportunity to respond.
6. I accept that in relation to a claim such as this, SAHA's position is different from that of most landlords because the SAHA officers who participate in the Tribunal hearing process are usually not the SAHA officers with the knowledge of the day to day management of the tenancy. I note that although the SAHA property manager gave some evidence at the original hearing concerning the issue of the door slamming in Unit 15, it was only brief and there is more evidence he can provide which will be useful to me in making the correct or preferable decision.
7. For these reasons, I have decided to allow the additional evidence to be produced at the review hearing.

1. At the review hearing, SAHA sought to amend their application for review to include an application to terminate Mr Ivancic's tenancy. I denied this request on grounds of procedural fairness and because the scope of any review hearing being conducted under s 70 SACAT Act, must necessarily be limited to a review of a decision made by the Tribunal in its original jurisdiction (and there has been no order dealing with an application by SAHA to terminate Mr Ivancic's tenancy).

1. In SAHA's written submission concerning the admission of fresh evidence in the review hearing process, there was an application for the suppression of the names of the witnesses[2] on the basis that those witnesses have an intervention order against Mr Ivancic.
2. Section 60 of the SACAT Act relevantly provides that generally Tribunal proceedings are to be conducted in public, but if satisfied that:
   • it is in the interests of justice;
   • because of the confidential nature of the matter;
   • in order to expedite proceedings of the Tribunal, or
   • for any other reason

• requiring that part or all of a hearing be held in private; or
• prohibiting or restricting the publication of the name and address of a witness appearing before the Tribunal.

1. During the hearing, the SAHA property manager said that between February - October 2020, he had received more than 700 email or SMS messages from Mr Ivancic which were abusive, threatening or rude.
2. In the circumstances I will make the order prohibiting publication of any identifying information other than the Christian name of the SAHA witness.

1. Although Mr Ivancic's original application sought compensation for breach of his right to quiet enjoyment of the property on multiple grounds, ultimately Member King found that Mr Ivancic's right to quiet enjoyment had only been breached in relation to the issue of the door slamming in Unit 15. Member King said that she considered that SAHA was in breach of their obligation to provide Mr Ivancic with quiet enjoyment of his property because SAHA should have undertaken works to address the issue of the door slamming in Unit 15 sooner.[3]

1. A tenant's right to quiet enjoyment is stated as follows in s 65 Residential Tenancies Act 1995 (the RTA)

65 - Quiet enjoyment

(1) It is a term of a residential tenancy agreement that -

(a) the tenant is entitled to quiet enjoyment of the premises without interruption by the landlord or a person claiming under the landlord or with superior title to the landlord's title; and

(b) the landlord will not cause or permit an interference with the reasonable peace, comfort or privacy of the tenant in the tenant's use of the premises; and

(c) the landlord will take reasonable steps to prevent other tenants of the landlord in occupation of adjacent premises from causing or permitting interference with the reasonable peace, comfort or privacy of the tenant in the tenant's use of the premises.

(2) If the landlord causes or permits interference with the reasonable peace, comfort or privacy of the tenant in the tenant's use of the premises in circumstances that amount to harassment of the tenant, the landlord is guilty of an offence.

Maximum penalty: $5 000.

1. If the Tribunal decides that a landlord has acted in a manner which is in breach of a tenant's right to quiet enjoyment, then the Tribunal may exercise any of the powers under s 110(1) RTA and make orders which are appropriate in the circumstances. Member King's order for compensation is made under s 110(1)(c) RTA which empowers the Tribunal to order that a person make a payment, which can include compensation.

The correct interpretation of s 65

1. In the review hearing, LPY submitted that the original Order was incorrect in the way in which Member King had approached s 65 RTA because Member King had not applied the test contained in s 65(2) RTA.

Is s 65(2) RTA relevant to this dispute?

1. In the review hearing, LPY submitted that the original Order was incorrect because Mr Ivancic's original application was clearly made on the basis that he was seeking compensation of $5,000 as provided for in relation to s 65(2) RTA. He submitted that it is a requirement of s 65(2) that the conduct of the landlord (which interferes with the tenant's quiet enjoyment of the property) must amount to harassment, and as SAHA's conduct did not amount to harassment, then the grounds of s 65(2) RTA were not made out and therefore SAHA was not in breach of the tenant's right to quiet enjoyment of the property (and no compensation was payable).
2. Section 65(2) RTA creates a summary offence: if the landlord's actions interfere with the reasonable peace, comfort or privacy of a tenant to the extent that the landlord's actions amount to harassment, then the landlord may be prosecuted for that conduct. Whether or not a prosecution should be considered for any summary offence created by the RTA is a matter to be decided by the person who has responsibility for the administration of the RTA,[4] and it is entirely independent of a tenant's right to bring an application to the Tribunal seeking orders (such as compensation) in relation to a landlord's breach of the obligations under s 65(1) RTA.
3. For these reasons, I do not accept LPY's argument that the original Order was incorrect because of the application of s 65(2) RTA. That provision is not relevant to the dispute in the Tribunal.

1. The right to quiet enjoyment encompasses the tenant's right to possess the property and to enjoy it for all usual purposes.[5] It appears that the right to "reasonable peace, comfort and privacy" may be given a broader meaning than the term "quiet enjoyment".[6] For convenience, in this decision I will simply refer to the rights conferred on a tenant under s 65 RTA as the right to quiet enjoyment.
2. In my view there are two fundamental questions to be answered when dealing with a matter such as this:
   1. Does the evidence establish on the balance of probabilities that the tenant's right to quiet enjoyment of the property has been interfered with and this question will involve:
      • the application of an objective test; and
      • an assessment of the evidence in every particular case and a consideration of whether or not the interference was substantial.
   2. Where the breach of quiet enjoyment is not as a direct result of the landlord's actions:
      • did the landlord know or should the landlord have reasonably known about the circumstances which have led to the breach of the tenant's quiet enjoyment, and
      • what steps has the landlord taken to address the issue.

**Question 1: Does the evidence establish on the balance of probabilities that the tenant's right to quiet enjoyment of the property has been interfered with?

1. Member King found that the evidence established that the extent of the door slamming in Unit 15 was unreasonable and resulted in a breach of Mr Ivancic's right to quiet enjoyment of his unit.

1. LPY and JZG submitted that Mr Ivancic's complaint about the door slamming was not supported by other tenants in the units, it was a relatively minor issue and therefore did not meet the test for a breach of Mr Ivancic's right to quiet enjoyment.
2. LPY and JZG also submitted that the original Order was incorrect because Member King took into account the tenant's medical condition without requiring the tenant to provide current evidence of that condition.[7]
3. LPY and JZG called the SAHA property manager who gave the following evidence in the review hearing:
   • he manages about 400 tenancies in the general area of Carrington Street, Adelaide and would usually receive 2-3 complaints every day;
   • the physical qualities of the units are as follows -
     • this is a block of walk up flats with 3 levels;
     • there are 1-2 bedroom units on each level;
     • there are 6 units in the block of units in which Mr Ivancic resides;
     • he lives in Unit 14 which is on the ground floor;
     • there are 2 units on the first floor which are units 15 and 16;
     • Unit 15 is not directly above Mr Ivancic's unit, but adjacent to it;
   • Mr Ivancic complained about the door slamming in unit 15 earlier in the year and the SAHA property manager followed the usual process in investigating the complaint - he made enquiries about it with Mr Ivancic and other tenants who lived in the surrounding units;
   • At that stage no-one else had complained and so within a few weeks he advised Mr Ivancic that the complaint had not been corroborated;
   • Because the floors of the units are made from cement, it is not common to receive complaints from a person on one floor about noise such as door slamming from a unit on another floor;
   • Later in the year there were two other anonymous complaints, and also a complaint from the resident in unit 18 in October 2020;
   • The SAHA property manager suggested that a possible solution to the problem might be a "soft close" option for the door but this was a non-standard item for SAHA tenancies, and so the tenant in Unit 15 had to apply by completing a tenant alteration form[8] and he understood that the tenant in Unit 15 had not made that application;
   • He had not offered Mr Ivancic the opportunity to pay for the installation of a soft close door to the unit[9].
4. Mr Ivancic submitted that the issue is problematic not just for him but also for other occupants of the units and he referred to the two anonymous complainants and the third complaint made later in the year from another tenant.
5. At the original hearing, Mr Ivancic said that the door slamming occurs about 10-20 times a day and he had reported the issue to the landlord about 30 times over a period of months.
6. At the original hearing, Mr Ivancic said that he had not made his complaints about the door slamming due to it having exacerbated his pre-existing medical condition, but because the door slamming made him stressed.

My conclusions and the outcome in relation to Question 1

1. In deciding whether or not the tenant's quiet enjoyment of his property has been interfered with, I must apply an objective test.
2. This was the approach taken in South Australian Housing Trust v B[10] in which the Tribunal held that the 'requirement for peace, comfort or privacy is to be judged objectively by an external standard, and that external standard is the standard of reasonableness.
3. This was also the approach taken by his Honour Justice Parker[11] in the matter of Kingsley and Thorne v Living Choice Woodcroft[12] which dealt with an application by residents in a retirement village against the operator of the retirement village on the basis that the operator of the retirement village was in breach of their obligation to provide quiet enjoyment of their respective properties to the residents, due to the noise of other residents at social gatherings. His Honour upheld the decision at first instance and dismissed the application for review.
4. Section 65(1) RTA refers to the term "reasonable peace, comfort or enjoyment", and in Kingsley and Thorne, his Honour made the following comments generally about applying an objective test in relation to a determination about a possible breach of a person's [reasonable] peace, comfort or enjoyment:
   1. ...In law, an action will be a nuisance if it unreasonably interferes with the use and enjoyment by another person of their land.[13] Thus, the prohibition in cl 40.3 upon actions that cause a nuisance to another resident necessarily applies only to unreasonable actions.
   2. The further question is whether a subjective test or an objective test must be applied when determining whether there has been any breach of the prohibition in cl 40.3 upon causing annoyance[14] to another resident or the prohibition in cl 4(b) upon interfering with the use and enjoyment of other residents or visitors. If the test is subjective then a person might breach the prohibition simply because another resident finds their actions to be an annoyance even though, when viewed from the objective perspective of an independent observer, their actions would not be regarded as unreasonably causing annoyance or interfering with use and enjoyment. Thus, if a subjective test was to be applied, residents would face the risk of breaching their contractual obligations because another resident is particularly sensitive even though they may have no knowledge of that sensitivity.
   3. In that light, and because each of 40.3 and cl 40.4 of the licence agreement and cl 4(b) of the residence rules are intended to facilitate communal living, I firmly consider that cl 40.3 and cl 4(b) must be taken to prohibit only behaviour which unreasonably interferes with other residents. I also consider that the reasonableness of conduct must be judged on an objective rather than subjective basis. If a subjective test was to be applied, the required standard of behaviour would vary in accordance with the particular sensitivity of individual residents. That would make the scheme for community living established by the licence agreement and the residence rules unworkable.....

1. I agree that it was not appropriate to take into account any medical condition of the tenant because it is clear that the test which must be applied is an objective test, not a subjective one. I note that during the original hearing there was some discussion of an earlier diagnosis of PTSD in relation to Mr Ivancic. I am aware that Mr Ivancic also receives dialysis on a regular basis (and this information was mentioned in the original hearing).
2. However, I do not consider that Member King relied on any of Mr Ivancic's medical conditions in forming an assessment that his right to quiet enjoyment of the property had been interfered with and accordingly I do not agree that the original Order was incorrect in this regard.

1. It is clear that in claims by a tenant of a commercial tenancy for a breach of the tenant's right to quiet enjoyment, the tenant must establish that the breach is substantial in order to be successful.[15]
2. This approach has also been applied in residential tenancies. For example, in McC v Director of Housing (Residential Tenancies),[16] the Victorian Civil and Administrative Tribunal (VCAT) decided that bird noises, flood lighting and minor invasions of privacy by neighbours are mere inconveniences and did not amount to a breach of quiet enjoyment.[17] I consider this is the preferable approach.
3. In relation to the issue of whether or not the evidence establishes on the balance of probabilities that the door slamming in Unit 15 has interfered with Mr Ivancic's quiet enjoyment of his property, I consider the starting point must be what is reasonable in the circumstances of the group of units in which Mr Ivancic resides.
4. The question comes down to balancing the competing interests of neighbours in an urban community who have different expectations of the behaviour of one another -

Those living in towns may be irritated by their neighbours' noisy radios or incompetent playing of musical instruments; and they in turn may be inconvenience by the noise caused by guests slamming car doors and chattering after a late party...The question is whether the neighbour is using his property reasonably, having regard to the fact that he has a neighbour. The neighbour who is complaining must remember, too, that the other man can use his property in a reasonable way and there must be a measure of give and take, live and let live.[18]

1. The evidence given at the original hearing was that a number of the residents in the units have mental health conditions and drug or alcohol issues. There is a SAPOL team which is dedicated to the units known as the "Paragon" team. It is clear that the units are high density living and in my assessment, in a group of units such as this, some door slamming is to be expected.
2. I accept the evidence of the SAHA property manager that there has been only one other complaint from a person who was prepared to identify themselves, about door slamming in unit 15. I also accept his evidence that such complaints are not common in these units due to the cement construction of the floors.
3. In conclusion in relation to Question 1, I am not satisfied that - in applying an objective test - the evidence establishes on the balance of probabilities that the door slamming in Unit 15 has interfered with Mr Ivancic's quiet enjoyment of his unit.
4. Having come to that conclusion, it is not necessary for me to consider the issues raised by Question 2 however, I will make some observations about those issues in any event.

Question 2: Where the breach of quiet enjoyment is not as a direct result of the landlord's actions:-

• Did the landlord know or should the landlord have reasonably known about the circumstances which have led to the breach of the tenant's quiet enjoyment, and
• What steps has the landlord taken to address the issue.

1. It is not disputed that SAHA was aware of Mr Ivancic's claims about the impact on him of the slamming door in Unit 15, because he had complained to SAHA about it. It is also not disputed that SAHA took no action as a result of Mr Ivancic's complaint, because SAHA's view was that the complaint was not substantiated and therefore SAHA was under no legal obligation to address the issue.
2. The effect of the original Order is that Member King found that SAHA had permitted an interference with the tenant's right to quiet enjoyment, and SAHA failed to take reasonable steps to address the issue. Member King found that consequently, Mr Ivancic suffered inconvenience as a result of SAHA's failure, and she ordered compensation.
3. LPY and JZG submitted that the original Order was incorrect because -
   • Member King had not applied the requirements of all three paragraphs of s 65(1) to the circumstances of the case,[19]
   • The original Order effectively applied the general obligation of a landlord in relation to repairs,[20] to SAHA, but SAHA is exempt from that provision;[21]
   • The works necessary to install a soft close mechanism for the door in Unit 15 are beyond the scope of the SAHA policy for specifications for such a unit and therefore SAHA cannot be required to undertake the works (and cannot be found to be in breach of an obligation to a tenant which arises from a failure to carry out the works);
   • Mr Ivancic's approach of sending a prolific number of emails and text messages[22] which are littered with profanities, insults, threats and abuse means that it is very difficult to deal with him and to even identify which messages contain material relevant to the issue in dispute.

The requirements of s 65(1)

1. Section 65(1) RTA should be read as follows -
   • Paragraph (a) is a broad statement of a tenant's right to quiet enjoyment of their property;
   • Paragraph (b) states when a landlord will be responsible for a breach of that right - ie, if the landlord causes or permits an interference with the tenant's peace, comfort or privacy in relation to the use of the tenant's property;
   • Paragraph (c) places a specific obligation on a landlord to take reasonable steps to ensure that the actions of other tenants do not interfere with the quiet enjoyment of a tenant.
2. In other words, paragraph (b) applies if the landlord has caused the interference with the tenant's right to quiet enjoyment, or has permitted an interference to occur. Paragraph (c) is only relevant in circumstances where the tenant is claiming that their right of quiet enjoyment is being interrupted by the actions of other tenants of the landlord, and in that situation, paragraph (c) creates a defence for the landlord - if the landlord has taken reasonable steps to ensure other tenants' actions do not interfere with the quiet enjoyment of the tenant, then the landlord will not be in breach of the obligation.
3. Accordingly, it is clear that not all paragraphs of s 65(1) RTA are applicable in all claims by a tenant for the breach of their right to quiet enjoyment.
4. In any event, in this matter it is clear that as the alleged breach was not caused by SAHA itself, then it must have been a breach permitted by SAHA; as the issue was caused by another SAHA tenant and as SAHA had not taken any action to address the issue, then the defence in s 65(1)(c) RTA was not available to them.

The requirement for the breach to be addressed by certain repairs to the door

1. I accept that paragraphs 30 and 31 of the original Order refer to the delay in the performance of the works which implies the requirement for repairs to be carried out, however, Member King did not refer to any specific obligation on SAHA in relation to repairs.
2. In any event, the suggestion that the issue of the noise from the door slamming in Unit 15 might be addressed by the installation of a soft closing mechanism was a suggestion by the SAHA property manager (in an attempt to resolve the issue). It was not the only option available to SAHA. Member King did not impose any obligation on SAHA to carry out the repairs to the door (being the soft closing mechanism). It was up to SAHA to decide how best to address the issue.
3. The point is not that the door itself is defective, but it is the manner in which the occupant who lives in unit 15 slams the door that creates the issue. There are a number of ways in dealing with an issue such as this. For example, SAHA could have approached the occupant in Unit 15 and Mr Ivancic and tried to mediate the problem. That approach may have resulted in a suitable modification to the behaviour of the occupant of Unit 15. Or it may have resulted in a solution which has not occurred to anyone at the moment.[23]
4. Accordingly, I do not accept SAHA's submission that this matter can only be dealt with on the basis that the complaint concerns a defect which requires repairs, s 68 RTA does not apply to SAHA, therefore SAHA was not under an obligation to carry out any repairs to the door and therefore the application for breach of quiet enjoyment under s 65 RTA - due to the lack of repairs - must fail.

The requirement that a landlord must take reasonable steps to prevent a tenant from breaching the quiet enjoyment of another tenant

1. SAHA's submission amounts to an argument that the requirement for the installation of a soft closing mechanism is unreasonable because such an alteration is outside SAHA's ordinary policies.
2. In other words, s 65(1)(c) RTA only requires that a landlord is to take such steps as are reasonable to prevent one tenant from interfering with another tenant's right to quiet enjoyment, and it would not be reasonable to require SAHA to undertake works outside their ordinary policies.
3. The question of what is reasonable will vary from one case to another. In the matter of Rasheed v Wan & Alphabet Solutions Pty Ltd,[24] a tenant claimed compensation for breach of their quiet enjoyment arising from the fact that the property had previously been used as a brothel. The tenant's enjoyment of the property was regularly interrupted by visitors who were unaware of the change in use of the premises and by items being sent in the post. The Tribunal held that the landlord had failed to take reasonable steps to prevent the breach of the tenant's right to quiet enjoyment because even though the landlord had put up a sign about the changed use of the premises, the landlord had not informed the tenant of the former use of the property prior to the commencement of the tenancy.
4. As I have said above, a SAHA officer made the suggestion about the installation of the soft close mechanism. There may well have been a variety of other options which could have addressed the issue (and which may have fallen within SAHA's ordinary policies). Therefore, I do not consider this argument is helpful for SAHA.

1. SAHA has suggested that Mr Ivancic's unreasonable conduct in sending multiple communications littered with profanities, abuse and threats, makes it difficult for SAHA staff to identify any proper communication, and then to communicate with him about it.
2. It is clear that a tenant's conduct will be relevant to any claim for compensation on the basis that the landlord is in breach of an obligation under the RTA and as a result the tenant has suffered loss or inconvenience.[25] In addition, in claims of this kind, courts will take into account the contributory negligence of a tenant.[26]
3. I consider this aspect of SAHA's argument is reasonable and if I had found that there was a breach of Mr Ivancic's right to quiet enjoyment, then I would have taken into account this conduct in any assessment of compensation.

1. Due to the significance of the issues involved in this matter, and due to my decision to allow new evidence to be introduced as part of the review hearing process, I will grant leave for the review to proceed.
2. For the reasons outlined above, I will set aside the original Order and I will substitute a decision to dismiss the tenant's application.

1. The publication of any identifying information concerning the witness at the review hearing, other than his Christian name, is prohibited.

1. The Tribunal grants leave to apply for internal review.
2. I set aside the order of the Tribunal made on 7 October 2020 (in matter number 2020/SH006420) and substitute the following order instead:

[1] [2016] SACAT 19.

[2] Although SAHA initially intended to introduce fresh evidence from two witnesses as part of the review process, because I refused to allow the application to amend their application to include an application for possession, they only called one additional witness in the review hearing.

[4] Per s 6 of the RTA it is the Commissioner of Consumer and Business Services.

[5] Martins Camera Corner Pty Ltd v Hotel Mayfair Ltd (1976) 2 NSWLR 15 [23].

[6] Ingram v Department of Housing (Tenancy) [2002] NSWCTTT 84.

[7] At paragraph 11 of the original Order Member King refers to Mr Ivancic's claims that he has suffered a lack of sleep due to the noise of the door slamming and this impacts on him as he needs to visit hospital three times a week for dialysis.

[8] My understanding was that if approved, the tenant in Unit 15 would have to pay for the installation of the soft close option.

[9] This may well not be a realistic option as my understanding of Mr Ivancic's statements in the hearing is that he would not be able to afford it in any event.

[10] [2005] SARTT 5.

[11] At the time of the decision, his Honour was President of the Tribunal.

[12] [2017] SACAT 16.

[13] I refer to private nuisances. A public nuisance is a different concept that is concerned with unreasonable interference with the use of public roads.

[14] The Macquarie Dictionary defines an "annoyance" as something that is "disagreeable or troublesome".

[15] Aussie Traveller Pty Ltd v Marklea Pty Ltd (1997) QA 2, 11 - 16; Martins Camera Corner Pty ltd v Hotel Mayfair Ltd (1976) 2 NSWLR 15, 23.

[16] [2009] VCAT 2748.

[17] Clarke v Director of Housing (Residential Tenancies) [2017] VCAT 1413.

[18] Kennaway v Thompson [1980] EWCA Civ 1; (1981) QB 88, 94.

[19] Paragraph 4.1.5.1 of their written submission.

[20] Section 68 RTA.

[21] Section 5 RTA exempts SAHA from the obligations under s 68 RTA - if a SAHA tenant has a complaint to make about a repairs issue then there is a separate process for the tenant to use.

[22] The SAHA property manager gave evidence that he had received 700 text messages in the period February - October 2020.

[23] For example, at the review hearing, Mr Ivancic suggested providing some material which could have been used to soften the door closing mechanism- that may or may not have been a realistic suggestion.

[24] [1997] SARTT 69.

[25] Section 78 RTA requires any party to a tenancy agreement who seeks compensation from another party on the basis of the other party's breach, to take reasonable steps to mitigate their loss.

[26] Martins Camera Corner Pty ltd v Hotel Mayfair Ltd (1976) 2 NSWLR 15.