Tanner v NSW Land and Housing Corporation

The factual background

1. The applicant lives at the premises with her daughter and two grandchildren.
2. There has been a dispute between the parties arising out of the stove at the premises being inoperative for several months in 2022.

The history of the proceedings

1. On 21 October 2022, the tenant commenced proceedings SH 22/47010 against the landlord by filing an application form in which she: 1. sought the following orders: "Section 187(1)(d) - An order as to compensation $13500 Section 44(1)(b) - An order that the rent payable is excessive due to the reduction or withdrawal of any goods, services or facilities provided with the residential premises Section 65(1)(a) - An order that the landlord carry out repairs" 1. set out the following reasons for seeking these orders: "The tenant's hot water system in the kitchen burst in mid-March 2022 this flooded her apartment and caused water damage to the stove. The tenant has made numerous requests for the stove to be repaired/replaced. DCJ have informed the tenant that it is not safe for her to use the stove. To date the stove has not been repaired or replaced. The tenant is seeking a rent reduction to reflect the reduced use of the property. The tenant is also seeking $9,000 economic loss for costs incurred as a result of the landlord's breach (e.g. replacement food) and $2,500 non-economic loss for the landlord's failure to repair & interference with her peace, comfort and privacy in using the residential premises."
2. On 17 December 2022, the Tribunal made the procedural directions for the filing and service of evidence by the parties.

The hearing

1. The hearing took place on 16 February 2023. Ms L Pope, Tenant Advocate, of the Eastern Area Tenants Service, represented the applicant. Mr R Issa (Mr Issa), the officer responsible for the premises, represented the respondent.
2. At the commencement of the hearing the parties advised that an agreement had been reached for a rent reduction for the premises of $3,045.71, being a 20% reduction for the period from 9 April 2022 to 31 October 2022.
3. The applicant relied on the following documents which were admitted into evidence without objection: 1. a bundle of documents which had been provided to the Tribunal on 6 December 2022 (which was marked as exhibit A1); 2. a bundle of documents which had been provided to the Tribunal on 7 December 2022 (which was marked as exhibit A2).
4. The respondent relied on a bundle of documents which had been provided to the Tribunal on 13 January 2023 which was admitted into evidence without objection (which was marked as exhibit R1).
5. There was no oral evidence.
6. The applicant and the respondent made oral submissions.
7. In his oral address Mr Issa conceded that the applicant was entitled to compensation for her additional living expenses and her distress arising from the non-operation of the stove.
8. At the conclusion of the hearing, I reserved my decision.

The issues

1. The following issues arise for determination in the proceedings: 1. whether the Tribunal has jurisdiction to determine the proceedings; 2. whether the applicant is entitled to compensation and if so what compensation for her additional living expenses arising from the non-operation of the stove; 3. whether the applicant is entitled to compensation and if so what compensation for her distress arising from the non-operation of the stove.
2. Before considering these issues it is appropriate to set out the applicable statutory provisions and legal principles, and to summarise the evidence and the submissions of the parties.

NCAT Act

1. Part 3 (ss 28-34) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) contains provisions dealing with the jurisdiction of the Tribunal. Section 28 deals with the jurisdiction of the Tribunal generally, and relevantly provides: 28 Jurisdiction of Tribunal generally (1) The Tribunal has such jurisdiction and functions as may be conferred or imposed on it by or under this Act or any other legislation. (2) In particular, the jurisdiction of the Tribunal consists of the following kinds of jurisdiction - (a) the general jurisdiction of the Tribunal, …
2. Section 29 deals with the general jurisdiction of the Tribunal, and relevantly provides: 29 General jurisdiction (1) The Tribunal has general jurisdiction over a matter if - (a) legislation (other than this Act or the procedural rules) enables the Tribunal to make decisions or exercise other functions, whether on application or of its own motion, of a kind specified by the legislation in respect of that matter, and (b) the matter does not otherwise fall within the administrative review jurisdiction, appeal jurisdiction or enforcement jurisdiction of the Tribunal. …
3. Part 4 Division 5 (ss 56-63) contains provisions dealing with the determination of issues and proceedings in the Tribunal. Section 59 deals with the powers of the Tribunal when proceedings settled and relevantly provides: 59 Powers when proceedings settled (1) The Tribunal may, in any proceedings, make such orders (including an order dismissing the application or appeal that is the subject of the proceedings) as it thinks fit to give effect to any agreed settlement reached by the parties in the proceedings if - (a) the terms of the agreed settlement are in writing, signed by or on behalf of the parties and lodged with the Tribunal, and (b) the Tribunal is satisfied that it would have the power to make a decision in the terms of the agreed settlement or in terms that are consistent with the terms of the agreed settlement. …
4. Schedule 4 contains provisions dealing with the Consumer and Commercial Division of the Tribunal (the CC Division). Clause 3 deals with the functions allocated to the CC Division, and relevantly provides: 3 Functions allocated to Division (1) The functions of the Tribunal in relation to the following legislation are allocated to the Division - … Residential Tenancies Act 2010 …

RT Act

1. Part 3 Division 2 (ss 32-48) contains provisions dealing with rent and other payments under a residential tenancy agreement. Section 44 deals with the tenant's remedies for excessive rent, and relevantly provides: 44 Tenant's remedies for excessive rent (1) Excessive rent orders The Tribunal may, on the application of a tenant, make any of the following orders - … (b) an order that rent payable under an existing or proposed residential tenancy agreement is excessive, having regard to the reduction or withdrawal by the landlord of any goods, services or facilities provided with the residential premises and that, from a specified day, the rent for residential premises must not exceed a specified amount. … (3) Applications on withdrawal of goods or services A tenant may, before the end of a tenancy, make an application that the rent is excessive, having regard to the reduction or withdrawal of any goods, services or facilities provided with the residential premises, even if those goods, services or facilities were provided under a separate or a previous contract, agreement or arrangement. … (6) Effect of excessive rent order An order by the Tribunal specifying a maximum amount of rent - (a) has effect for the period (of not more than 12 months) specified by the Tribunal, and (b) binds only the landlord and tenant under the residential tenancy agreement or proposed residential tenancy agreement under which the rent is payable. …
2. Part 3 Division 3 (ss 49-54A) contains provisions dealing with the occupation and use of residential premises. Section 50 deals with the tenant's right to quiet enjoyment, and relevantly 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. … (4) This section is a term of every residential tenancy agreement.
3. Part 9 Division 1 (ss 187-189) contains provisions dealing with the general powers of the Tribunal. Section 187 deals with the orders that may be made by the Tribunal, and relevantly provides: 187 Orders that may be made by Tribunal (1) The Tribunal may, on application by a landlord or tenant or other person under this Act, or in any proceedings under this Act, make one or more of the following orders - … (d) an order as to compensation, …

Breach of the covenant for quiet enjoyment

1. A claim for reduction of rent and a claim for breach of the covenant for quiet enjoyment are not mutually exclusive although they may overlap: Hyndes v Maddak Pty Ltd [2021] NSWCATAP 302 (Hyndes) at [45]-[47].
2. In Hawkesbury Nominees Pty Ltd v Battik Pty Ltd [2000] FCA 185 (Hawkesbury) Hill J at [37], [51]-[53] relevantly said (Gallop at [1] agreeing): "[37] The covenant for quiet enjoyment may be breached by the landlord (or those claiming under him) interfering with the physical occupation of the land by the tenant: Hill & Redman's Law of Landlord and Tenant (18th ed) para 936, note 1. The principal, as the cases discussed below indicate, may be expressed in the following way: there will be a breach of the covenant for quiet enjoyment where the ordinary and lawful enjoyment of the demised premises is substantially interfered with by the acts of the lessor or those lawfully claiming under him, whether or not the title to the land or the possession of the land is otherwise affected. Whether what is complained of amounts to a substantial interference will be a question of fact. A breach may result either from acts of commission or omission by the landlord: see generally, Dennett v Atherton (1872) 7 QB 316, 326-7, Robinson v Kilvert (1889) 41 Ch D 88 at 97." "[51] Although a lease creates an interest in land and covenants in the lease run with the land, a lease is a contract … and in the event of a breach of the lease the party not in breach is entitled to damages for the breach. The measure of damages will be that applicable to contract, … [52] where damages are to be assessed for breach of contract the damages are the means of placing the plaintiff in the position the plaintiff would have been in had the contract been performed … [53] ... The fundamental principle is that so far as possible by a monetary award the plaintiff is to be placed in the position he or she would have occupied if the contract had been fulfilled …

Orders giving effect to a settlement under s 59(1) of the NCAT Act

1. For the purpose of s 59(1) of the NCAT Act it is not necessary that the settlement be in writing where the parties provide oral consent at a hearing: Aboriginal Housing Office v Harrison [2021] NSWCATAP 97 at [80]-[119].

The evidence of the applicant

1. Exhibit A1 contains copies of receipts for the purchase of food and drinks which Ms Pope said totalled $3,187.39 and covered the period from mid-March 2022 to 31 October 2022.
2. Exhibit A2 contains copies of receipts for the purchase of food and drinks which Ms Pope said totalled $3,686.00 and covered the period from mid-March 2022 to 31 October 2022.
3. Exhibit A2 contains a statement of the applicant (the Tanner statement) in which she relevantly states: "2. In mid-March my stove broke due to water damage from a burst hot water system. 3. I reported this to Housing when it happened however my stove was not replaced until 27 October 2022. Even though the stove was replaced the electrician who attended the property said it's the wiring in the kitchen that's the problem and that it was dangerous. 4. The electrician said he would put in a report due to the safety risk. He came back to my house to install a cut-out switch on the wall and told me the stove must be switched off entirely when not in use. He also stated that the whole unit needed re-wiring as it was shot. 5. I do not consider the repair to have been completed as this is clearly not functional and is a safety hazard, particularly as my grandson could press the switch. 6. For the period that I did not have an oven I had to spend a tremendous amount of money on takeaway food to feed my household for which I am claiming compensation. I am also claiming compensation for the distress this experience has caused me. 7. When I would follow up to keep reporting the issues I would be told that the job had been cancelled and kept getting given different job numbers. I tried to minimise the stress by purchasing an electric twin hot plate but that blew up after only one week due to the electrical issues at the property. 8. My grandson has safe foods due to his disability which I could not accommodate properly during the time without my stove. This caused a great deal of stress and frustration on both our parts. 9. I was told by the maintenance department to get my neighbours to cook for me or to just use the microwave for everything which was demoralising. 10. I was so distressed by this that I even tried to contact the Housing Minister but was told they were too busy to deal with it. 11. Having no one to help me put enormous stress on me and I felt that no one cared even though I pay a high rent. The impact on my grandson was so severe he took it out on his mother and myself and had meltdowns which the neighbours complained about. My granddaughter was doing her HSC and I couldn't even give her nutritious meals which was extremely frustrating. 12. I was always anxious and worried about money to feed the family for the fortnight. It was sad that I could not have people over for dinner as I could not cook anything. My son and his partner couldn't come for a meal. It was extremely dangerous when I tried to do any cooking as I had to do it by torchlight and could only use one hot plate."

The evidence of the respondent

1. Exhibit R1 includes a document described as a chronology of maintenance for the premises which includes the entries "electric stove keeps tripping" which were created and finalised on 9 April 2022 and 10 April 2022, and 11 April 2022 and 12 April 2022 respectively (the maintenance record).

The submissions of the applicant

1. Ms Pope submitted that the applicant was entitled to compensation of $3,852.99 for her additional living expenses arising from the non-operation of the stove calculated as follows: $6,825 (being the total of $3,187.39 of exhibit A1 and $3,686.00 of exhibit A2 less a restaurant expense of $389.40 in exhibit A1) less $2,583.00 (which she said was the cost of food that the applicant did not purchase in the applicable period).
2. When I said to Ms Pope that I did not see how the applicant could recover compensation for drinks, she reduced the claim of the applicant to $3,500.00, but did not indicate how the amount of the reduction had been calculated.
3. Ms Pope submitted that the applicant was entitled to compensation of $2,500.00 for her distress arising from the non-operation of the stove, and referred to the evidence of the applicant in the Tanner statement and four decisions of the Tribunal where compensation had been awarded to a tenant for distress arising out of the breach of the covenant for quiet enjoyment in a residential tenancy agreement.

The submissions of the respondent

1. Mr Issa submitted that the applicant was entitled to compensation of $491.00 for the period from 1 October 2022 to 21 November 2022 for her additional living expenses arising from the non-operation of the stove.
2. Mr Issa submitted that the applicant was entitled to compensation of $300.00 for the period from 1 October 2022 to 21 November 2022 for her distress arising from the non-operation of the stove.
3. When I asked Mr Issa what was the appropriate amount if I found that the stove was non-operational in the period from mid-March 2022 to 31 October 2022, he said I should find that the stove was repaired as set out in the maintenance record and declined my invitation to specify an alternative amounts of compensation.

Whether the Tribunal has jurisdiction to determine the proceedings

1. I am satisfied that the Tribunal has jurisdiction to determine the proceedings pursuant to ss 28(1) and (2)(a) and 29(1)(a) of the NCAT Act as ss 50(1) and 187(1)(d) of the RT Act enable the Tribunal to make decisions in relation to the proceedings. It follows that the functions of the Tribunal in relation to the RT Act have been allocated to the CC Division pursuant to cl 3(1) of Sch 4 of the NCAT Act.

Whether the applicant is entitled to compensation and if so what compensation for her additional living expenses arising from the non-operation of the stove

1. Having regard to the principles in Hawkesbury at [51]-[53], I am satisfied that the implicit concession by the respondent that the applicant is entitled to compensation for her additional living expenses arising from the non-operation of the stove was properly made.
2. I do not accept the submission of the respondent that the stove was repaired on 10 April 2022 and 12 April 2022 for the following reasons: 1. the respondent did not challenge the evidence of the applicant in the Tanner statement; 2. there were no primary documents or other evidence supporting the entries in the maintenance record.
3. I do not accept the submission of the respondent that compensation should be awarded for the period from 1 October 2022 to 21 November 2022 as it was contrary to the unchallenged evidence of the applicant in the Tanner statement and not supported by any evidence of the respondent.
4. While I agree with the methodology of the applicant for calculating her additional living expenses arising from the non-operation of the stove, her evidence for establishing the appropriate amount was unsatisfactory in the following respects: 1. the information on several of the receipts in exhibit A1 could not be discerned through poor copying; 2. several receipts in exhibit A1 were for purchases outside of the period from mid-March 2022 to 31 October 2022: I observed receipts for the following dates: 1. 17 December 2021 for $27.95; 2. 21 December 2021 for $31.90; 3. 26 December 2021 for $27.95; 4. 28 December 2021 for $33.85; 5. 4 January 2022 for $30.80; 6. 12 January 2022 for $56.80; 7. 18 January 2022 for $140.30; 8. 19 January 2022 for $39.80; 9. 26 January 2022 for $37.56; 10. 29 January 2022 for $51.60; 11. 11 February 2022 for $31.00; 12. 20 February 2022 for an unknown amount; 13. 26 February 2022 for $51.40; 14. 6 March 2022 for $91 (the full total is unclear); 15. 9 March 2022 for $32.00; 16. 12 March 2022 for $29.06; 17. 12 March 2022 for $27.60; 18. 28 November 2022 for an unknown amount; 1. several receipts in exhibit A1 during the period from mid-March 2022 to 31 October 2022 include expenditure on drinks; 2. the information on several of the receipts in exhibit A2 could not be discerned through poor copying; 3. several receipts in exhibit A2 were for purchases outside of the period from mid-March 2022 to 31 October 2022: I observed receipts for the following dates: 1. 21 February 2022 for $19.28; 2. 1 March 2022 for $15.61; 3. 6 March 2022 for $97.99; 4. 9 March 2022 for $58.05; 5. 13 March 2022 for $19.67; 1. the receipts in exhibit A2 during the period from mid-March 2022 to 31 October 2022 are for a total amount with no identification of the amounts for food and drinks.
5. I am satisfied that the claim of the applicant of $3,500.00 for her additional living expenses is overstated. On the basis of the unsatisfactory evidence of the applicant I am not satisfied that that she has established she had any additional living expenses due to the non-operation of the stove in the period from mid-March 2022 to 31 October 2022 and accordingly any entitlement to compensation pursuant to s 187(1)(d) of the RT Act for the following reasons: 1. I have excluded from consideration all receipts in exhibits A1 and A2 which are not legible and/or do not contain any date; 2. there are receipts in exhibits A1 and A2 for 114 take-away transactions in the period from mid-March 2022 to 31 October 2022 totalling $4,874.16 at an average of $42.75 per transaction; 3. there are receipts in exhibits A1 and A2 for 22 take-away transactions in the period from mid-December 2021 to mid-March 2022. In the light of this evidence, I do not accept that all take-away meals in the period from mid-March 2022 to 31 October 2022 were due to the non-operation of the stove but arose from the lifestyle choice of the applicant. I have decided that over the period of seven and one half months from mid-March 2022 to 31 October 2022 55 of the 114 transactions referred to in [42(2)] above were due to the lifestyle choice of the applicant and deducted $,351.25 (being the total of 55 transactions at $42.75 per transaction; 4. I have deducted $352.99 for drinks; 5. I have deducted $2,583.00 for the cost of food that the applicant did not purchase in the applicable period.

Whether the applicant is entitled to compensation and if so what compensation for her distress arising from the non-operation of the stove

1. Having regard to the principles in Hawkesbury at [37] and in Hyndes at [45]-[47] and the unchallenged evidence of the applicant in the Tanner statement, I am satisfied that the implicit concession by the respondent that it breached the covenant for quiet enjoyment in the tenancy agreement pursuant to s 50(1) and (4) of the RT Act and that the applicant is entitled to compensation for her distress arising from the non-operation of the stove was properly made.
2. As set out in [37] above, I do not accept the submission of the respondent that compensation should be awarded for the period from 1 October 2022 to 21 November 2022.
3. I have not found the decisions relied on by the applicant to be helpful as they each depend on the particular facts found.
4. On the basis of the unchallenged evidence of the applicant in the Tanner statement, I have decided that she should be awarded $1,500.00 representing an amount of $200.00 per month for the period of seven and one half months from mid-March 2022 to 31 October 2022 for her distress pursuant to s 187(1)(d) of the RT Act.

Conclusion

1. I have decided that pursuant to s 59(1) of the NCAT Act I should make an order giving effect to the agreement of the parties for a rent reduction for the premises of $3,045.71 for the period from 9 April 2022 to 31 October 2022 as the Tribunal has power to make such an order pursuant to s 44(1)(b), (3) and (6) of the RT Act. Accordingly, I have decided that the respondent should pay the applicant $4,545.71 being the total of $3,045.71 for rent reduction and compensation of $1,500.00 for the breach of the covenant for quiet enjoyment.

Orders

1. I make the following order: 1. the respondent is to pay the applicant the sum of $4,545.71 immediately.

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

Amendments 18 August 2023 - Formatting amendments. 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: 18 August 2023