Turnbull v Mission Australia Housing

REasONS FOR DECISION

1. Between November 2011 and May 2015 Rachel Turnbull resided in an apartment owned and managed by "social housing provider" Mission Australia Housing (Mission Australia). Ms Turnbull's apartment was located in a six-level apartment complex in inner city Sydney. Ms Turnbull and Mission Australia were parties to a "residential tenancy agreement" (the Agreement).
2. In May 2015, Ms Turnbull applied to the New South Wales Civil and Administrative Tribunal (NCAT) for orders for compensation and a reduction in rent under the Residential Tenancies Act 2010 (NSW) (the Act), claiming an amount of just under $10,000. Three weeks later, Mission Australia applied to NCAT for orders that Ms Turnbull pay rental arrears in the sum of $5,600.
3. The parties' respective applications were dealt with together at a hearing on 4 September 2015. On 17 September 2015, the Tribunal (SM Smith) ordered Ms Turnbull to immediately pay Mission Australia the sum of $5,137.14 and gave written reasons for that decision.
4. Ms Turnbull appeals against that decision on the ground that it was not "fair and equitable" and that it was "against the weight of evidence".

Should leave to appeal out of time be granted?

1. A party seeking to appeal against a decision made in residential proceedings must lodge a notice of appeal within 14 days of being notified of the decision or given reasons for the decision, whichever is the later. (Reg 25(4)(b) of the Civil and Administrative Tribunal Rules 2014 (NSW) (the Rules)).
2. Ms Turnbull did not lodge a notice of appeal within 14 days of receiving notice of and reasons for the decision under appeal. Therefore the appeal cannot proceed unless we extend the period for lodging the appeal (reg 25(4)(b) of the Rules and s 41 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act)).
3. While unfettered, the discretionary power to extend the period of time for lodging an appeal must be exercised judicially having regard to the guiding principle that the Tribunal is to facilitate the just, quick and cheap resolution of the real issue in the proceedings (s 36 of the NCAT Act; Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [18]).
4. Ms Turnbull is taken to have been given a copy of the decision and reasons for the decision (the Reasons) on 24 September 2015 (reg 13(4)(a) of the Rules). While Ms Turnbull gave a notice of appeal to the Registry within 14 days of being given a copy of the decision and reasons for the decision (2 October 2015), the notice of appeal is not taken to have been lodged until 26 October 2015, the day she paid the applicable fee (reg 25(2)(d) of the Rules). As a consequence, the appeal is taken to have been lodged on 26 October 2015, making it about 20 days out of time.
5. Ms Turnbull claims that she made an application for a waiver of the applicable fee on 2 October 2015. She claims she was told by a member of the NCAT Registry that she would be promptly advised about whether her application would be accepted. However it was not until 22 October 2015 that she was notified that her application for a waiver of fees had been refused. She states that she was told to pay the fee by 26 October 2016, which she did.
6. Once notified that her application for a fee waiver had been refused, Ms Turnbull promptly paid the applicable fee. We are satisfied that Ms Turnbull has provided an adequate explanation for lodging the notice of appeal out of time. Accordingly, and because the period that the appeal was out of time was relatively short, and because Mission Australia is not prejudiced by and does not oppose an extension of time being granted, we have decided to exercise the power to extend the period of time for lodging the appeal.

Decision under appeal

1. In summary, the Tribunal found:

• When Ms Turnbull vacated the premises on 29 May 2015, she owed rent of $5,657.14.
• In the 12 months to 29 May 2015, the rent payable by Ms Turnbull was "excessive" and, as a consequence, Ms Turnbull was entitled to a reduction in rent of $10 per week, totalling $520. The Tribunal ordered Ms Turnbull to pay Mission Australia the difference between these two amounts, being $5,137.14 ($5,657.14 - $520).

1. The Tribunal noted that Ms Turnbull's Application to NCAT sought "unspecified orders" in relation to the alleged: 1. Interference with her "quiet enjoyment" of the tenancy; 2. Poor ventilation throughout the apartment complex where she resided (the apartment complex), which resulted in her apartment: (i) being extremely cold throughout winter and expensive to heat (ii) being subjected to cooking smells, cigarette smoke and other offensive odours emanating from neighbouring apartments; 3. Cockroach infestations throughout her apartment; 4. Unreliable hot water supply to her apartment; 5. Unacceptable behaviour by the concierge staff of the apartment complex.
2. The Tribunal decided to: 1. decline to order compensation for Ms Turnbull's alleged "loss of quiet enjoyment" of the residential tenancy on the ground that it was unable to do so by the operation of s 16 of the Civil Liability Act 2002 (NSW) (Reasons at [27]-[32]); 2. dismiss the claims in relation to the alleged cockroach infestation and poor ventilation system, on the ground that the application in relation to each was made out of time (Reasons at [33], [34]); 3. decline to award compensation in relation to the alleged "excessive electricity charges" (Reasons at [35]); 4. decline to award compensation for the interruption to the supply of hot water to Ms Turnbull's apartment on the ground that Mission Australia took "immediate and adequate steps to rectify the hot water supply at the earliest possible time" (Reasons at [42]); 5. order a reduction in rent of $10 per week for the 12 months to 29 May 2015, on the ground that "the security service used by the landlord to deliver concierge services did engage in inappropriately rude, aggressive and bullying conduct in relation to the tenant" (Reasons at [43] - [55]).

Grounds of appeal

1. The decision under appeal is an "internally reviewable decision" (ss 4, 32(4) of the NCAT Act). A party may appeal an internally reviewable decision on any question of law or with the leave of the Appeal Panel on any other ground (s 80(2)(b) of the NCAT Act).
2. Where, as in this case, the decision which is the subject of the appeal is a decision of the Consumer and Commercial Division of NCAT, cl 12 of Schedule 4 to the NCAT Act limits the circumstances in which an Appeal Panel may grant leave to appeal: 12 Limitations on internal appeals against Division decisions (a) the decision of the Tribunal under appeal was not fair and equitable, or (b) the decision of the Tribunal under appeal was against the weight of evidence, or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). …
3. Ms Turnbull seeks leave to appeal on the ground that the decision made by the Tribunal was "against the weight of evidence" and "not fair and equitable". To grant leave on either ground we must be satisfied that Ms Turnbull may have suffered a substantial miscarriage of justice because the decision was against the weight of evidence and/or was not fair and equitable: cl 12(1)(a),(b) of Sch 4 to the Act.
4. While not expressly raised by Ms Turnbull, the following questions of law may be discerned from the Notice of Appeal read together with the written submissions in support: 1. Whether in the exercise of the power conferred by s 44 of the Act, the Tribunal failed to have regard to a relevant consideration, namely the National Rental Affordability Scheme guidelines; 2. whether, in respect of the application for the alleged loss of quiet enjoyment of the tenancy, the Tribunal misconstrued s 16 of the Civil Liability Act; 3. whether, in respect of the application for compensation for excessive electricity charges, the Tribunal failed to give adequate reasons.
5. Given that Ms Turnbull was self-represented and, in our opinion, Mission Australia was unlikely to suffer any real prejudice, we decided to determine the appeal having regard to the above questions of law together with the grounds relied upon by Ms Turnbull. (See generally the role of the Appeal Panel where a self-represented appellant fails to articulate a question of law: Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [12]; Khan v Kang [2014] NSWCATAP 48 at [15]; George Papazachariou v Michael Antoun [2015] NSWCATAP 157 at [23]).

Was the decision not fair and equitable/ against the weight of evidence?

1. There is significant overlap between the submissions made by Ms Turnbull in support of her submission that the decision was not fair and equitable and that it was against the weight of evidence. For convenience we will deal with those submissions together.

Application for payment of rent arrears

1. Ms Turnbull challenged the central finding made by the Tribunal that at the end of the Agreement, rent of $5657.14 was payable under the Agreement. She submitted that the Tribunal (i) failed to reduce the rent payable under the Agreement as required by the "National Rental Affordability Scheme guidelines" (the Guidelines), (ii) miscalculated the amount of rent payable by her at the end of the tenancy.

Failure to reduce the rent payable under the Agreement

1. The weekly rent payable under the Agreement was $220, which increased to $227.481 on 1 August 2014. Ms Turnbull contends that in determining the rent payable under the Agreement, Mission Australia misapplied the Guidelines by, among other things, failing to take into account her income in the 12 months before the commencement of the Agreement. She asserts that contrary to the Guidelines which stipulate that rent must not exceed 25-30% of a tenant's income, she was paying between 45 and 63% of her income in rent.
2. The National Rental Affordability Scheme is a partnership between the Australian Government and the States. Mission Australia is an approved participant under the Scheme. The Guidelines stipulate that accommodation financed under the Scheme must be rented to "eligible tenants". Eligible tenants are persons in low and moderate income households as tested against household income thresholds which differ depending on the household composition [1] .
3. In its Reasons, the Tribunal noted Ms Turnbull's contention that she lacked the capacity to pay the rent payable under the Agreement (Reasons at [7]) but did not otherwise address the submission made in this Appeal that in determining the rent payable under the Agreement, Mission Australia misapplied the Guidelines and therefore the rent was "excessive" within the meaning of s 44 of the Act.
4. The Act gives the Tribunal power to determine certain matters relating to residential tenancy agreements (see Part 9 of the Act). The Tribunal's powers relevantly include the power to make an order that rent under an existing or proposed residential tenancy agreement, or a rent increase, is excessive. Section 44 of the Act 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: (a) an order that a rent increase under an existing or proposed residential tenancy agreement is excessive and that, from a specified day, the rent for residential premises must not exceed a specified amount, (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. … (5) The Tribunal may have regard to the following in determining whether a rent increase or rent is excessive: (a) the general market level of rents for comparable premises in the locality or a similar locality, (b) the landlord's outgoings under the residential tenancy agreement or proposed agreement, (c) any fittings, appliances or other goods, services or facilities provided with the residential premises, (d) the state of repair of the residential premises, (e) the accommodation and amenities provided in the residential premises, (f) any work done to the residential premises by or on behalf of the tenant, (g) when the last increase occurred, (h) any other matter it considers relevant (other than the income of the tenant or the tenant's ability to afford the rent increase or rent). (emphasis added)
5. As is apparent from its terms, s 44 of the Act does not give the Tribunal unfettered power to determine whether the amount of rent payable under a residential tenancy agreement is excessive. A pre-condition to the exercise of that power is a finding that there has been "a reduction or withdrawal by the landlord of any goods, services or facilities provided with the residential premises" (see s 44(1)(a) of the Act).
6. Ms Turnbull's assertion that the rent was excessive is not based on the contention that there had been a reduction or withdrawal of goods, services or facilities by Mission Australia but rather that it misapplied or failed to have regard to the Guidelines. Even if it is accepted that there had been a misapplication or failure to have regard to the Guidelines, this is irrelevant to the question of whether there had been a reduction or withdrawal of goods, services or facilities. In any event, s 44(5)(h) of the Act instructs that the Tribunal must not have regard to the income of the tenant or the tenant's ability to afford the rent in determining whether the subject rent is excessive.
7. Section 44 is the only provision in the Act which gives the Tribunal the power to review the quantum of rent payable under a residential tenancy agreement. The Act does not confer any additional powers where, as in this case, the agreement is a "social housing tenancy agreement" (see Part 9 of the Act).
8. It follows that it was not open to the Tribunal to make an order that the rent payable under the Agreement was excessive on the basis of Mission Australia's purported misapplication of or failure to have regard to the Guidelines. (The Tribunal found that the rent was excessive on other grounds, which are addressed below.)
9. In the interests of completeness we note that the legislation governing the National Rental Affordability Scheme - the National Rental Affordability Scheme Act 2008 (Cth), the Income Tax Assessment Act 1997 (Division 380) (Cth) and the National Rental Affordability Scheme Regulations 2008 (Cth) - does not give NCAT the power to review the rent payable under a residential tenancy agreement relating to the Scheme.
10. The decision cannot be said to be not fair and equitable because of the Tribunal's failure to have regard to the Guidelines. The Tribunal was not bound to take the Guidelines into account in determining the amount payable under the Agreement and did not err by failing to do so.

Determination of the amount of rental arrears

1. Before the Tribunal was a copy of a document described as the "Tenant Ledger", which Mission Australia claimed listed all rental payments received from Ms Turnbull. That document revealed that at the end of the tenancy, rent of $5,831.18 was outstanding.
2. Ms Turnbull contends that the finding made by the Tribunal that the tenant ledger correctly reflected the amount of rent payable by her was against the weight of evidence. In support she relies upon:

• A yet to be released UNSW study said to reveal that "the majority of tenants (if not all) had reported that rent they had paid had been lost at some point in the tenancy";
• In April 2012, when notified by a Mission Australia employee that she was behind in her rent she went immediately to the bank and transferred an amount of $900. A few days later she was told by a Mission Australia employee that that money was credited to another tenant by mistake. On learning this, she wrote that she was relieved because "I was not keeping my receipts I just trusted that money paid to Mission through Westpac would be faultless".

1. Before the Tribunal were a number of documents said by Mission Australia to demonstrate a history of non-payment of rent throughout the life of the tenancy. They included:

• consent orders entered by the Consumer, Trader and Tenancy Tribunal (CTTT) on 6 August 2012 giving effect to a signed agreement between the parties, which acknowledged that as at 5 June 2012, rent arrears of just under $2000 were payable by Ms Turnbull to Mission Australia.
• consent orders entered by the CTTT on 6 May 2013, which stated that as at that date, rent arrears of about $5000 were payable by Ms Turnbull to Mission Australia.

1. In its Reasons, the Tribunal noted that while Ms Turnbull claimed some payments "had not been properly applied to her account" she "acknowledged there was no evidence to support that suggestion" (Reasons at [7]). In the appeal, apart from the account of the conversation with the Mission Australia employee referred to in [32] above, Ms Turnbull was unable to point to any evidence before the Tribunal which refuted Mission Australia's claim that throughout the tenancy, she owed significant rent arrears.
2. The claim made by Ms Turnbull in this Appeal that the tenant ledger was inaccurate was unsupported, inconsistent with earlier admissions she had made and was contradicted by documentary evidence tendered by Mission Australia. Given these circumstances, it cannot reasonably be argued that the finding made by the Tribunal about the amount of rental arrears owed by Ms Turnbull was against the weight of evidence.
3. On the available material there is nothing to indicate that in determining Mission Australia's application for payment of rental arrears that the Tribunal went about its fact-finding role in an unorthodox manner or one that was likely to produce an unfair result. There is no evidence and nor is it asserted that the Tribunal failed to give Ms Turnbull a reasonable opportunity to provide evidence or make submissions.
4. We are not persuaded that this part of the decision was not fair and equitable.

Application in relation to the alleged cockroach infestation and poor ventilation system

1. The Tribunal disposed of the applications in relation to the alleged cockroach infestation and poor ventilation system on the basis that by the combined operation of s 190 of the Act and reg 22(9) of the Residential Tenancies Regulation 2010 (NSW) (the Regulation), Ms Turnbull's application was out of time (Reasons at [33], [34]).
2. While not expressly stated, it is apparent from its Reasons that the Tribunal characterised Ms Turnbull's claim in relation to these matters as a breach of the Agreement. It is a term of every residential tenancy agreement that a landlord must provide the residential premises in a reasonable state of cleanliness and fit for habitation by the tenant (s 52 of the Act). The Tribunal may order compensation for any breach of a residential tenancy agreement (s 187(2) of the Act).
3. Section 190(1) states that 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 tenant becomes aware of the breach or within such other period as may be prescribed by the regulations". The prescribed period for the purposes of s 190(1) of the Act is "within three months after the applicant becomes aware of the breach" (reg 22(9) of the Regulation).
4. The Tribunal found that Ms Turnbull became aware of the cockroach problem "at least by 2013" and the vent problem "from very early in the tenancy" (Reasons at [34]). Applying those findings, the Tribunal determined that each alleged breach of the Agreement "occurred well outside the three month limit from the date of making the application to the Tribunal" (Reasons at [34]).
5. Ms Turnbull does not challenge these findings. However, she submits that it was unfair for the Tribunal to apply s 190(1) of the Act because Mission Australia knew about both problems from "early on but they made it very clear they did not want to fix anything, and complaining is a huge waste of time". In addition, she claimed that Mission Australia did not permit her to make an application to the Tribunal in 2013 and threatened her with "eviction and homelessness".
6. The Tribunal was correct to decide that by the combined operation of s 190 of the Act and reg 22(9) of the Regulation, the applications for compensation in respect of the cockroach and ventilation problems were out of time. There is nothing before us to suggest that Ms Turnbull applied under s 41 of the NCAT Act to extend the time for making either application. As this part of the decision turned on the application of a statutory limitation provision to facts not in dispute, self-evidently it cannot be asserted that it was against the weight of evidence. Nor in our opinion was the decision not fair and equitable.

Did the Tribunal err by not treating Ms Turnbull's application as an application for a reduction in rent?

1. In the alternative, Ms Turnbull contends that the Tribunal erred by not treating her application in relation to the ventilation and cockroach problems as an application under s 44(1) for an order that the rent payable under the Agreement was excessive. Mission Australia submits that it was not open to the Tribunal to treat these alleged breaches of the Agreement as constituting "the reduction or withdrawal of any goods, services or facilities provided with the residential premises".
2. As Ms Turnbull correctly points out, the three month limitation applying to applications for compensation for breach of a residential tenancy agreement does not apply to applications made under s 44 of the Act. The only time limitation applying to the latter is that the application must be made before the end of tenancy (s 44(4) of the Act).
3. Ms Turnbull has not taken us to any material to indicate that she expressly or implicitly made an application under s 44 of the Act in relation to either the cockroach or ventilation problems. Furthermore, we are not persuaded that had such application been made it would have been open to the Tribunal to make the order sought. As we noted above, a precondition to the exercise of the power under s 44 is "the reduction or withdrawal by the landlord of any goods, services or facilities provided with the residential premises…".
4. With respect to the alleged ventilation problem, we understand Ms Turnbull's complaint to relate to the design of the apartment complex, which she contends was defective and allowed external odours to permeate throughout her apartment. In our opinion, that alleged design defect could not be characterised as a reduction or withdrawal of services because on her own account there was no withdrawal or reduction of any service or facility - the design defect was in existence from Day 1.
5. With respect to the cockroach issue, Ms Turnbull's complaint appears to relate to the effectiveness of the steps taken by Mission Australia to address that problem, not whether there had been a withdrawal or reduction in a service or facility.
6. The available evidence establishes that is probable that Mission Australia undertook "cockroach bombing" exercises on a regular basis in the common areas of the premises. Ms Turnbull's belief is that her premises became infested with cockroaches because they migrated from areas that had been "bombed" into hers. Mission Australia, evidently, provided a pest control service which it did not withdraw or reduce but which it maintained at a certain level. That cockroaches are difficult, perhaps impossible, to eradicate entirely from large premises is unsurprising given their tenacity and hardiness. The presence of cockroaches alone does not establish that there had been a withdrawal or reduction of a service provided by a landlord.
7. We are not persuaded that the Tribunal erred by treating Ms Turnbull's application as an application for compensation and not as an application for reduction in rent. Nor are we persuaded that the decision was not fair and equitable or against the weight of evidence.

Application in relation to supply of hot water

1. The Tribunal found there were problems with the apartment complex's hot water service, which caused Ms Turnbull to be without hot water for about five days. The Tribunal wrote that the issue raised was "difficult" (at [41]): On the one hand, any tenant living in Sydney in the 21st century, irrespective of what subsidy applies to the rent, would expect an adequate and continuous supply of hot water. On the other hand there will always be incidents outside the control of the landlord that may cause the interruption to that supply.
2. The Tribunal found, however, that Mission Australia "took immediate and adequate steps to rectify the hot water supply at the earliest possible time" and on that basis found "no breach of s 63(1) of the Act had been established" (at [41], [42]).
3. Ms Turnbull argues that the Tribunal's decision not to award compensation was "a miscarriage of justice and against the weight of evidence". She asserted that five days is a long time to go without hot water and she should get "a refund of some sort for this breach".
4. Section 63(1) makes it a term of every residential tenancy agreement that a landlord must provide and maintain the residential premises in a reasonable state of repair having regard to the age of, rent payable for and prospective life of the premises. Section 65(3) provides that the Tribunal must not determine that a landlord has breached the obligation to provide and maintain the residential premises in a reasonable state of repair unless it is satisfied that: (a) the landlord had notice of the need for the repair or ought reasonably to have known of the need for the repair, and (b) the landlord failed to act with reasonable diligence to have the repair carried out.
5. Central to the decision made by the Tribunal was the finding that Mission Australia acted promptly to rectify the interruption to the supply of hot water to Ms Turnbull's apartment (and presumably other apartments in the complex). The Tribunal had before it evidence of the efforts made by Mission Australia to rectify the problem (see Reasons at [23]). The finding that Mission Australia acted with reasonable diligence to reconnect the water supply could not in our opinion be said to be against the weight of evidence.
6. Apart from asserting that the decision was "wrong" Ms Turnbull has not explained how the decision arrived at was not fair and equitable. There is no evidence and nor is it asserted that the Tribunal failed to give Ms Turnbull a reasonable opportunity to provide evidence about, or make submissions in support of, the hot water supply issue. We are not persuaded that this part of the decision was not fair and equitable.

Application in relation to alleged excessive electricity charges

1. Ms Turnbull claimed an amount of $1500 for compensation for alleged excessive electricity charges, which she asserted were a result of the apartment complex's faulty central heating system.
2. The Tribunal found there were problems with the central heating system and concluded that this constituted a breach s 63(1) of the Act (Reasons at [38]): One can understand a heating system that develops a fault and requires rectification within a reasonable time. However, I am satisfied that repeated incidents of lack of functionality in the heating system, particularly in a new building, demonstrates a failure by the landlord to meet the obligations under s63(1).
3. The Tribunal, however, decided not to award compensation, reasoning (at [39], [40]): [T]he tenant's evidence does not support an award of $1,500.00 as compensation for excessive electricity charges. The tenant's evidence demonstrates a very regular use of electricity up to the winter of 2014. During a sixmonth period the electricity use then escalated to a total of $777.00. There is no evidence in regard to any changes in electricity prices at that time, extreme weather conditions or any other factor that may also have influenced the amount of electricity used. Further, there is no evidence supporting damages in an amount double the amount actually billed in that six month period. I am not satisfied the tenant has made out a case in regard to the electricity charges.

Were adequate reasons given for the decision not to award compensation for the alleged excessive electricity charges?

1. The Tribunal was required to give reasons exposing its reasoning process (see generally Wainohu v New South Wales [2011] HCA 24, (2011) 243 CLR 181; Beale v GIO (1997) 48 NSWLR 430; Collins v Urban [2014] NSWCATAP 17 (Collins)). Any statement of reasons must meet the requirements of s 63(3) of the Act, which require that reasons contain: (a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based, (b) the Tribunal's understanding of the applicable law, (c) the reasoning processes that lead the Tribunal to the conclusions it made. (See Collins at [56]; O'Brien v Twyman [2016] NSWCATAP 125 at [50])
2. While not required to give "lengthy or elaborate reasons", the Tribunal was nonetheless required to articulate the "essential ground or grounds upon which the decision rests": Collins at [54] citing Sydney Supermarkets Pty Limited v Xu [2009] NSWADTAP 28 at [60] and Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 per McHugh JA at 280.
3. Whether reasons for decision are adequate requires consideration to be given to the nature and the role of the decision-maker and an acknowledgement that transparency in decision-making is an important value, but it is not cost free and may involve separate parameters of quantity and quality (Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 (at [48]); Collins at [57]; Khan v Kang [2014] NSWCATAP 48 at [57]).

Consideration

1. The basis for the Tribunal's decision not to award compensation is not clear. It may be that the Tribunal found that the "lack of functionality in the heating system" did not contribute to the increase in Ms Turnbull's electricity costs. Alternatively, it may be that the Tribunal found that it did contribute to an increase in Ms Turnbull's electricity costs (at least throughout the winter of 2014) but concluded that there was insufficient evidence to establish loss. A further possibility is that the Tribunal found that Ms Turnbull had suffered loss attributable to the lack of functionality in the heating system, but concluded the amount claimed was excessive. It cannot be gleaned from the Reasons what facts were found or whether the decision turned on a factual finding(s) or a conclusion of law. The inability to discern from the Reasons the basis upon which the claim was rejected demonstrates the inadequacy of the Tribunal's reasons.
2. In our view, the Reasons in relation to the claim for electricity costs fail to meet the minimum standard contemplated by the Appeal Panel in Collins and to comply with s 62(3) of the NCAT Act.
3. The Tribunal's failure to give adequate reasons for this part of the decision constitutes an error of law. The error was material to the ultimate decision. We have therefore decided to set aside this part of the decision and to remit it for reconsideration by the Tribunal without further evidence. Subject to member availability, we see no reason why the Tribunal should not be reconstituted by the original member but leave the question of the constitution of the Tribunal for determination in accordance with s 27 of the NCAT Act. It is a matter for the Tribunal whether the parties should be invited to make further submissions.

Application in relation to loss of quiet enjoyment of the tenancy

1. Section 50 of the Act provides: 50 Tenant's right to quiet enjoyment (1) A tenant is entitled to quiet enjoyment of the residential premises without interruption by the landlord or any person claiming by, through or under the landlord or having superior title (such as a head landlord) to that of the landlord. (2) A landlord or landlord's agent must not interfere with, or cause or permit any interference with, the reasonable peace, comfort or privacy of the tenant in using the residential premises. Maximum penalty: 10 penalty units. (3) A landlord or landlord's agent must take all reasonable steps to ensure that the landlord's other neighbouring tenants do not interfere with the reasonable peace, comfort or privacy of the tenant in using the residential premises. (4) This section is a term of every residential tenancy agreement.
2. The Tribunal declined to order compensation for Ms Turnbull's alleged loss of quiet enjoyment of the residential premises. It did not determine the merits of the claim but dismissed it on the ground that by the operation of s 16 of the Civil Liability Act it was unable to award compensation, citing in support Insight Vacations Pty Ltd v Young [2010] NSWCA 137.
3. Ms Turnbull contends that the decision was not fair and equitable because it should have been determined as an application for a rent reduction under s 44 of the Act. For the reasons discussed above in relation to the cockroach and ventilation claims, in our opinion had such application been made, it would not support a finding that the alleged loss of quiet enjoyment constituted "a reduction or withdrawal by Mission Australia of any goods, services or facilities".
4. In the alternative, Ms Turnbull contends that the decision was not fair and equitable because "Mission Australia [was] breaching my lease … and a penalty is needed to stop this behaviour". She contends that in these circumstances it was a "miscarriage of justice" for the Tribunal to apply s 16 of the Civil Liability Act.
5. Under the Civil Liability Act the maximum amount of damages that may be awarded by a Tribunal for non-economic loss is $350,000, but that amount can only be awarded in a most extreme case (ss 11A, 16(2)). "Damages" are defined to include any form of monetary compensation and "non-economic loss" to include pain and suffering (s 3). Damages for non-economic loss are required to be assessed as a proportion of a most extreme case (s 16). No damages may be awarded for non-economic loss unless the severity of the non-economic loss is at least 15% of a most extreme case (s 16(2), see also, Berkeley Challenge Pty Ltd v Howarth [2013] NSWCA 370 at [5]).
6. The Tribunal concluded that s 16(2) of the Civil Liability Act prevented it from awarding compensation under s 187(1)(d) of the Act for Ms Turnbull's alleged loss of quiet enjoyment. The findings made by the Tribunal which underpinned that conclusion - that (i) any loss suffered by Ms Turnbull was in the nature of "non-economic loss", and (ii) any loss suffered did not reach the 15% threshold imposed by the Civil Liability Act - could not be said to be against the weight of evidence.
7. We appreciate that Ms Turnbull feels a sense of injustice with the decision not to award compensation for what she contends was a substantial interference with her quiet enjoyment. Her complaint is, in effect, a criticism of Parliament's decision to restrict awards of compensation for non-economic loss. The Tribunal simply applied the law to the facts found. We are not persuaded that this part of the decision was not fair and equitable or against the weight of evidence.

Claim in relation to the concierge services

1. Ms Turnbull sought an order for a reduction of rent for being subjected to rude and bullying treatment by the concierge staff engaged by Mission Australia to provide security and other services to tenants residing at the apartment complex.
2. The Tribunal largely accepted Ms Turnbull's claim about the conduct of the concierge staff and found it constituted "the reduction or withdrawal of services" within the meaning of s 44(3) of the Act. The Tribunal decided, however, that any adjustment of the rent should be "relatively minor", awarding a reduction in the sum of $10 per week for the 52 weeks to 29 May 2015. The Tribunal noted that, by the operation of s 44(6)(a) of the Act, it could not award a reduction in rent for a period in excess of 12 months.
3. The gravamen or essence of this ground of appeal is the decision by the Tribunal to make a "relatively minor" adjustment to the rent payable under the Agreement. Ms Turnbull claims that this constitutes a substantial miscarriage of justice and does not appropriately penalise Mission Australia and "stop the abuse".
4. Section 44 of the Act requires the Tribunal to undertake a three-step process: (i) determine whether there has been a reduction or withdrawal by the landlord of any goods, services or facilities provided with the residential premises, and (ii) if so, decide whether the rent is or was "excessive", and (iii) if so, determine whether and by what amount the rent should be reduced for a specified period not exceeding 12 months.
5. While the Act sets out a non-exhaustive list of factors the Tribunal "may have regard to" in undertaking the second step (s 44(5)) it provides no guidance on how to undertake the third step. The Tribunal approached the second and third steps by having regard to the facilities at large available to Ms Turnbull as a tenant of the complex together with the impact on her of having to deal with the concierge staff. The Tribunal found: 53 Although it was, on occasion, unpleasant and no doubt distressing for the tenant to have to deal with the concierge on entering and leaving the building, it did not form a substantial part of her activities. She enjoyed all other aspects of residing in the premises and had full use of the premises in that time.
6. While she has not expressed it in in these terms, in effect Ms Turnbull contends that the decision to order a rent reduction of only $10 per week award is outside the range of awards made in comparable matters, citing in support, Beetham, Wendy Anne v Repetylo, Osyp (Joe) [1998] NSWRT 2. We note that in Beetham the Residential Tenancy Tribunal did not, as asserted by Ms Turnbull, order a reduction in rent, but rather dismissed the application made by the tenant for a reduction in rent. Nonetheless, we accept the proposition advanced by Ms Turnbull that NCAT and its predecessor Tribunals have made decisions where a rent reduction in excess of $10 per week has been ordered. We do not accept, however, that this establishes a "norm" or "standard", which indicates that the reduction ordered in this matter is out of proportion to the circumstances of the case.
7. The available evidence does not indicate that the Tribunal went about its task in an unorthodox or unconventional manner, had regard to irrelevant considerations or failed to take into account relevant considerations. While reasonable minds might differ on whether the reduction in rent awarded was appropriate and proportionate, we are not persuaded that the decision was against the weight of evidence or was not fair and equitable.

Was the finding that Ms Turnbull "enjoyed all other aspects of residing in the premises and had full use of the premises in that time" against the weight of evidence?

1. At the hearing of the Appeal, Ms Turnbull asserted that the above finding was against the weight of evidence but conceded she was unable to point to any evidence before the Tribunal, which supported that assertion. We decided to give Ms Turnbull a further opportunity to bring to our attention the evidence she contended supports that assertion and to provide it to the Appeal Panel within seven days after the hearing. We also invited Mission Australia to make written submissions about any material identified by Ms Turnbull.
2. In answer to our direction Ms Turnbull identified the following documents: No Description Date 1 Work order issued by MA for installation of ventilation in apartment of tenant, Matthew Fredrickson 24/7/13 2 Extract from Facebook page of a member of MA security staff 21/10/13 3 Photo of a member of MA's concierge staff (source and context unknown) unknown 4 Email from Ms Turnbull to MA officer, Davina Lomas complaining about a member of MA's concierge staff 19/10/13 5 Letter from Ms Turnbull to NSW Police complaining about an alleged incident involving MA's concierge staff 1/12/14 6 Email from operations manager of security company to MA's Judy Tomas concerning member of concierge staff about which Ms Turnbull complained 12/3/15 7 Handwritten note relating to tenant, Matthew Fredrickson, author unknown 3/4/13 8 Letter from MA to Matthew Fredrickson 1/8/2013 10 Statutory declaration prepared by Ms Turnbull complaining about concierge staff 2/7/15 11 Email from Davina Lomas to Ms Turnbull in reply to document 4 20/10/14 12 Typed note about investigation (author unknown) undated 13 Statement prepared by Ms Turnbull complaining about investigation conducted to investigate her complaint about security staff 18/6/14 14 Email from Ms Turnbull to Christina Mudliar 3/10/14 15 Information sheet, "Achieving smoke-free apartment living" Undated 16 Statutory declarations prepared by Ms Turnbull (2) 28 January 2016

1. Self-evidently, the statutory declarations prepared by Ms Turnbull dated 28 January 2016 (Doc. 16) were not before the Tribunal. Except to the extent they contain submissions, we have not taken them into account.
2. The documents identified by Ms Turnbull support her claim that since at least 2013 she was troubled by the behaviour of the concierge staff. As noted above, the Tribunal largely accepted that claim notwithstanding Mission Australia's submission that Ms Turnbull's claim should not be accepted as an independent investigation failed to establish the veracity of her allegations (see Reasons [46] - [48]).
3. The significance of the finding that "[Ms Turnbull] enjoyed all other aspects of residing in the premises and had full use of the premises in that time" is that it formed part of the Tribunal's evaluation about the extent to which the services provided by Mission Australia had been reduced. This was central to its ultimate decision that any adjustment to the rent as a result of the concierge problem should be relatively minor. While the "new" documents relied upon by Ms Turnbull largely support her claim about the conduct of the concierge staff and the effect on her, they do not undermine or weaken the finding that "[Ms Turnbull otherwise] had full use of the premises". Taken as a whole we are not persuaded that the documents identified by Ms Turnbull support a conclusion that the impugned finding was against the weight of evidence.

Conclusion

1. For the reasons given we make the following orders: 1. The time to file the Notice of Appeal is extended to 26 October 2015. 2. That part of the decision under Appeal relating to the application for compensation for alleged excessive electricity charges incurred by Ms Turnbull is set aside and remitted for reconsideration by the Tribunal without further evidence. 3. The balance of the decision under Appeal is confirmed.

Endnote

1. See Department of Social Services, Fact Sheet: National Rental Affordability Scheme (NRAS), http://www.nrasaustralia.com.au, accessed 4 June 2016 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: 28 June 2016