Vok v NSW Land and Housing Corporation

Previous proceedings

1. It is necessary to consider the previous applications involving the Appellant and the Respondent.

Previous proceedings - SH 22/10874 (March 2022 joint application)

1. On 7 March 2022, two other tenants as well as the Appellant, who all live in the same apartment block in Bondi, jointly lodged a social housing application (SH 22/10874) (March 2022 joint application). The application sought orders arising from damage caused to certain common areas of the apartment block and the Appellant's unit resulting from works that commenced in January 2022 by two appointed contractors of the Respondent, Construction Landscape Excavation Group Pty Ltd (CLE Group) and GCN Pty Ltd.
2. The orders sought in the March 2022 joint application required the Respondent: to replace carpet in certain common areas; repair and repaint the mouldy ceiling in certain common areas; turf and replace shrubs in the garden area damaged by a contractor to the Respondent; rectify roof leaks in certain common areas; and rectify water penetration into the Appellant's unit around a window.
3. On 3 May 2022, the March 2022 joint application came before a Tribunal Member who determined that the matter could not proceed as a joint claim and the tenants would need to pursue their claims individually.
4. On 6 May 2022, orders were made confirming the withdrawal of application SH22/10874.

Previous proceedings - SH 22/31719 (June 2022 application)

1. On 30 June 2022, the Appellant lodged a social housing application as an individual seeking orders against the Respondent (SH 22/31719) (June 2022 application). A copy of the June 2022 application and evidence filed by the parties in those proceedings, including three affidavits filed in those proceedings by the Appellant (5 August 2022, 24 August 2022 and 4 October 2022), were filed in these appeal proceedings.
2. The June 2022 application sought orders in largely the same terms as the March 2022 joint application.
3. The Appellant identified the following provisions of the RTA as relevant to his application: s 50 (tenant's right to quiet enjoyment), s 52 (landlord's general obligation for residential premises) and s 63 (landlord's general obligation).
4. The focus of the June 2022 application is made evident in par 1 of the affidavit dated 24 August 2022 in which the Appellant states: "Both Applications [a reference also to SH 22/10874] are seeking Tribunal orders directing the Respondent to repair damage to common areas and damage to Unit 11 resulting from the works performed by 2 appointed contractors by NSW Land & Housing Corporation (i) Construction Landscape Excavation Group Pty Ltd (CLE Group) (ii) GCN Pty Ltd".
5. In the same 24 August 2022 affidavit (at par 21), the Appellant adds four additional orders sought in the June 2022 application, namely, orders that the Respondent replace rusty hand rails in certain common areas caused by roof leaks; repair and repaint ceilings and walls in the bedroom, bathroom, sitting room and kitchen in the Appellant's unit; rectify structural defects, falling down ceiling, in the common laundry caused by water penetration; and maintain common areas in a reasonable state.
6. In the 4 October 2022 affidavit, the Appellant restates (in par 1) that the application seeks "Tribunal orders directing the Respondent to repair damage to common areas and damage to unit 11 resulting from the works performed by ..CLE Group" and that (at par 2) "additional new evidence of importance has emerged since my Affidavit sworn on 24 August 2022 and…I need to file another Affidavit covering the events since 24 August 2022 to 30 September 2022".
7. The Appellant (at par 6) attests to a visit from an officer of Ventia [another contractor of the respondent] on 24 August 2022 to examine other urgent repairs sought by the Appellant. The Appellant showed the Ventia officer seven "problems", one being "(ii) the broken protruding pipes through the roof above our bathroom and bedroom that vibrate and rattle keeping us awake at night".
8. The other six problems (set out at par 6) were: badly leaking underground down pipe connection on the left side of the building along the walkway in; collapsing ceilings in the laundry; broken tiles in the laundry; protruding bits of concrete in front of the letter boxes presenting serious health and safety issues for all residents and visitors; broken fence; broken gutters and down pipes".
9. On 26 August 2022 (as set out in par 7) a different officer of Ventia came to inspect the leak around one of the Appellant's window frames. The Appellant also showed this Ventia officer the seven additional problems described at [18] and [19] above including "the broken protruding pipes through the roof above our bathroom and bedroom that vibrate and rattle keeping us awake at night".
10. Also at par 7, the Appellant states that he told the new Ventia officer "The cause of the many problems that manifest themselves here now has been the appointment of CLE Group to replace the roof by NSW Land & Housing Corporation early this year. The roof is leaking, gutters are leaking and down pipes are broken".
11. At par 8, the Appellant sets out part of an SMS message he sent to the Ventia officer. The full text of this SMS message is set out at page 221 of the Respondent's Appeal Book. The SMS in full is as follows: Dear Paul This is George from 25 Ramsgate Avenue at Bondi Beach. I refer to our meeting at my apartment on last Friday 26 August. Have you had a chance to action all or some of the issues we talked about of which you took photos of. My primary concern are 2 broken pipes penetrating through the roof above my bathroom and bedroom they vibrate at windy conditions and keep my wife and me awake at night. Last night we could not get any sleep. Would you kindly ensure the problem gets fixed. Many thanks George
12. The hearing of the June 2022 application took place on 21 October 2022. Orders were made, and written Reasons for Decision were issued, on the same date.
13. At [8]-[13] the Tribunal (differently constituted to that in the decision under appeal), set out the provisions of the RTA relevant to those proceedings including s 50 (tenant's right to quiet enjoyment), s 55 (access generally by landlord to residential premises without consent) and s 63 (landlord's general obligation).
14. After noting that in relation to two of the orders sought by the Appellant (replacement of carpets in certain common areas and repair and repainting of mouldy ceilings in certain common areas) there was agreement by the parties that these repairs had been carried out (at [21]), four outstanding issues were left for determination.
15. Two of these (a claim for the respondent to repair and repaint the walls and ceilings in unit 11 and a claim for the Respondent to rectify water penetration into Unit 11 around the window in the sitting room) were dismissed on the basis that the appellant had failed to satisfy the Tribunal that there was water damage to his unit that needed to be rectified ([28]).
16. The claim seeking an order that the Respondent rectify roof leaks into certain common areas was dismissed as the Tribunal was satisfied that the work had been carried out by the Respondent ([32]).
17. The final claim seeking an order that the Respondent turf and replant shrubs in the damaged garden was allowed and the Respondent was ordered to carry out relevant rectification work ([36]).
18. We note for the sake of completeness that the appellant appealed the decision made on 21 October 2022. On 20 February 2023, a differently constituted Appeal Panel granted, by consent, leave to appeal against the dismissal of the claim relating to water penetration and water damage to the Appellant's unit and the appeal was allowed in relation to those issues. These issues were remitted to a differently constituted Tribunal in the Consumer and Commercial Division.

September 2022 application - SH 22/43366

1. This is the application the subject of this appeal.
2. On 28 September 2022 the Appellant filed a new application (SH22/43366) (September 2022 application) that sought the following two orders: 1. The landlord is ordered to replace rusted broken pipes that penetrate the roof above my bedroom; and 2. The landlord is ordered to reduce the [Appellant's] rent by 50% from the date of e-repair request registration on 5 September 2022 until such time the problem is fully rectified
3. In an accompanying affidavit sworn on 27 September 2022, the Appellant (at pars 5 and 6) makes reference to the same contact the Appellant had with officers of Ventia on 24 and 26 August 2022, as set out at [18]-[20] above, during which the Appellant advised of seven problems that included "broken protruding pipes through the roof above our bathroom and bedroom that vibrate and rattle keeping us awake at night".
4. The affidavit (at par 7) sets out the same SMS message sent by the Appellant to an officer of Ventia referred to at [22] above.
5. At par 9 of the affidavit, the Appellant sets out the e-repair request he made to the Respondent on 5 September 2022 that makes reference to "2 pipes penetrating through the roof which are broken. They vibrate/rattle in windy conditions keeping my family awake at nights. It also presents danger to pedestrians as it can be seen from the street they are just about to fall off."
6. On 29 December 2022, the Appellant filed an Application for Miscellaneous Matters seeking to add two further two orders to the September 2022 application, namely: (3) an order to replace all rusted pipes penetrating through 4 chimneys and the Respondent is to ensure that no metal bits can fall down harming the residents, their visitors and passing pedestrians no later than 28 February 2023; and (4) an order to pay $500 compensation to the Appellant for bruised left arm resulting from falling down rusted pipe from the roof in loss of enjoyment peace and comfort, breaching s 50 of the Act and breaching duty of care owed to the Appellant.

Decision under appeal - 15 February 2023

1. The hearing of SH 22/43366 took place on 19 January 2023 and the decision under appeal was handed down on 15 February 2023.
2. In the reasons for decision, the Tribunal identified (at [9]) the following as the issues in dispute: "(a) Is there an Anshun estoppel or res judicata issue as the repair issues have been dealt with or should have been raised in SH22/31719 that was heard and determined on 17 October 2023. [sic] (b) If there is not an estoppel issue are there outstanding repairs? (c) If there is a breach arising from a failure to repair has there been a breach of the tenant's peace and quiet enjoyment resulting in a compensable loss?"
3. The following provisions of the RTA are listed by the Tribunal as being relevant to the proceedings: s 63(1) (landlord's obligation to repair); s 50(1) (tenant's entitlement to quiet enjoyment); 50(2) (landlord must not interfere with reasonable peace, comfort or privacy of the tenant); s44(1)(b) (Tribunal can make orders for rent reduction); s 187 (Tribunal can make orders for compensation arising from breach of the residential tenancy agreement).
4. Under the heading "Evidence and submissions" the Tribunal sets out a mixture of evidence, submissions by the parties and findings.
5. Under the heading "Findings", the Tribunal Member divides her findings (at [23] and [24]) into the "estoppel issue" (estoppel issue) and "the issue of the chimney" (chimney issue).
6. In relation to the estoppel issue, the Tribunal Member finds (at [23]): I am persuaded that the rusty pipes above the bathroom formed part of the claim SH22/31719 that was determined by the Tribunal on 21 October 2022. In particular I rely on Paragraphs 5,6 and 7 of [the Appellant's] affidavit of 27 September 2022 where these all relate to the roofing issue that was raised in his affidavit in previous proceedings in the Affidavit of 4 October 2022.
7. In relation to the chimney issue, the Tribunal Member states as follows: 27 There is no issue estoppel for the tenant's claim for a breach due to the failure of the pieces of metal on the chimney as I find that is a different issue to pipes in ceiling and the leaking issues. The question is whether there is any breach being a failure to repair the chimney rusted pipes.
8. The Tribunal Member then went on to make orders that (at [29]) the "respondent inspect the chimney pipes to ensure there [are] no loose pieces of metal that pose a danger of falling on the common property and injuring a tenant".
9. At [28], the Tribunal Member found that the landlord "was responsible for any repairs to the roof and/or chimney or pipes". At [30] the Tribunal Member stated that she "accept[ed] there is a requirement to repair the metal on the chimney". She went on to consider "whether there is a compensable claim arising from the failure to repair". She decided that there was and allowed a sum of $250 for compensation for the injury to the Appellant's arm when a piece of metal fell from the roof.
10. The balance of the Appellant's claim was dismissed ([31]).

Ground of appeal

1. The focus of the Appellant's appeal is the Tribunal Member's decision to dismiss the appellant's claim for rent reduction arising from the asserted failure to repair the noisy and rusty pipes (order 2 sought in the Notice of Appeal). The Appellant takes issue with the Tribunal Member's conclusion (at [20]-[23]) that the noisy and rusty pipes issue had already been dealt with in proceedings SH22/31719 or were essentially part of the same issue dealt with on 21 October 2022 and the Appellant was estopped from raising the same issue again.
2. As we understood the Appellant's ground of appeal as set out in his Notice of Appeal (and his oral submissions at the appeal hearing), the only issue that he asserts needs to be resolved by this appeal is that relating to the estoppel issue. The Appellant did not raise in his Notice of Appeal any grounds for which he would require the leave of the Appeal Panel.
3. In the Notice of Appeal, the Appellant seeks an order that the Respondent pay the Appellant $1,316.62 being 50% rent reduction for 15 weeks at weekly rent of $176 for a period from 2 September 2022 to 20 December 2022. An order is also sought that the Respondent pay to the Appellant costs associated with bringing the appeal being the filing fee of $113.
4. The Respondent in its Reply to Appeal accepts that the Appellant's ground of appeal raises a question of law (described by the Respondent as being whether the Tribunal erred in the application of the principle of Ashun estoppel to the facts) and therefore leave to appeal is not required pursuant to s80(2) of the CAT Act.
5. The Appellant may appeal as of right on a question of law (NCAT Act, s 80(2)(b)). Whether the Tribunal member erred in relation to the application of the principles of estoppel to the facts of the case was the sole issue we considered.
6. The Appeal Panel may decide to deal with an internal appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing and permit such fresh evidence, or evidence in addition to or in substitution for the evidence received by the Tribunal at first instance, to be given in the new hearing as it considers appropriate in the circumstances (NCAT Act, s 80(3)).
7. Under s 81(1) of the NCAT Act, in determining an internal appeal the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for any one or more of the following: (a) the appeal to be allowed or dismissed, (b) the decision under appeal to be confirmed, affirmed or varied, (c) the decision under appeal to be quashed or set aside, (d) the decision under appeal to be quashed or set aside and for another decision to be substituted for it, (e) the whole or any part of the case to be reconsidered by the Tribunal, either with or without further evidence, in accordance with the directions of the Appeal Panel.

Appellant's submissions

1. The Appellant filed written submissions and expanded on these at the appeal hearing. As we understood them, his arguments may be summarised as follows: 1. Estoppel could not have been the reason for the dismissal of the rent reduction claim in SH22/43366. The Tribunal Member stated that she was "persuaded that the rusty pipes above the bathroom formed part of the claim SH22/31719". Application SH22/31719 was filed on 30 June 2022. In that application there was no mention of the rusty pipes because the issue of the noisy and rusty pipes had not arisen then. 2. The Appellant reported the faulty rusted pipes on e-repair on 5 September 2022 (no. 156973). Order number 8004575087 based on e-repair no. 156973 was issued to contractor QaCo Pty Ltd on 19 September 2022. On 20 December 2022 QaCo Pty Ltd completed the works required in order no. 8004575087. Six men spent all day repairing the rusted pipes and the gutter issues. The contract between the Respondent's agent and QaCo Pty Ltd to replace the pipes was therefore entered into and performed. All of this was in evidence before the Tribunal Member hearing the September 2022 application. Estoppel cannot arise in circumstances where the Respondent accepted its responsibility to comply with its obligations under the Act and issued an order to rectify the issue. 3. There are two highly contradictory opposing sets of reasoning in the reasons. In par 26 and 27, the Tribunal Member states: [26] Matter SH22/31719 was a claim that related to water leaks and repairs to the roof. The chimney issue is quite different and relates to parts of the chimney being rusty and becoming unstable, therefore causing a potential injury arising from pieces of metal falling from the roof. [27] There is no issue estoppel for the tenant's claim for a breach due to the failure of the pieces of metal on the chimney as I find that is a different issue to pipes in the ceiling and the leaking issues. The question then is whether there is any breach being a failure to repair the chimney rusted pipes. This is in direct contradiction of par 23 where the Tribunal member states: [23] As to the estoppel issue, I am persuaded that the rusty pipes above the bathroom formed part of the claim SH22/31719 that was determined by the Tribunal on 21 October 2022. The pipes subject to the September 2022 application and the Application for Miscellaneous Matters are the pipes penetrating through the same chimneys in two different locations of the building. 1. In his oral submissions, the Appellant confirmed his position that the inclusion of the reference to the "broken protruding pipes" in the Affidavit of 4 October 2022 (filed in proceedings SH22/31719) and which appeared in the same terms in par 5, 6 and 7 of his 27 September 2022 affidavit (filed in proceedings SH22/43366) was only one issue amongst seven. He included a reference to it in the June 2022 application (by way of the 4 October 2022 affidavit) to illustrate what he described as "the huge issues" in the building.

Respondent's submissions

1. The Respondent filed written submissions and oral submissions were made at the appeal hearing on its behalf by Counsel. The Respondent's submissions may be summarised as follows: 1. The key evidence the Appellant relied on to support the rent reduction claim in the September 2022 application was identical to, or virtually identical to, the evidence he relied on to support the June 2022 application. 2. The Tribunal did not err in dismissing the rent reduction claim based on the application of the Anshun estoppel doctrine. 3. The Tribunal correctly applied the doctrine because the Appellant's claims for repair of the noisy and rusty pipes and rent reduction arose out of the same, or substantially the same, facts as those relied on in support of the June 2022 application. 4. Instead of amending the June 2022 application to include the rent reduction claim, the Appellant filed the September 2022 application; prepared the affidavit dated 27 September 2022 which included evidence to support the rent reduction claim; prepared the later affidavit of 4 October 2022 in support of the June 2022 application which included the same evidence the Appellant had given in his affidavit dated 27 September 2022 to support the rent reduction claim and; relied on his affidavit dated 4 October 2022 at the hearing of the June 2022 application. 5. The fact that the Respondent carried out the repairs (pursuant to the Appellant's e-repair request dated 5 September 2022) is irrelevant to the issue as to whether the rent reduction claim could and should have been included in the June 2022 application, such that the Appellant was estopped from bringing that claim in the September 2022 application. 6. The Appellant should have included the rent reduction claim in the June 2022 application having regard to the nature and subject matter of the June 2022 application which concerned repair works to common areas of the property. 7. The Appellant's decision to bring multiple related claims in reliance on identical evidence is inefficient, results in the Respondent having to expend additional costs in responding to multiple proceedings and places the Tribunal at risk of making conflicting findings or judgments. 8. To the extent that there is any inconsistency in the Tribunal's finding that the Appellant was estopped from bringing the rent reduction claim, but not estopped in respect of the compensation claim because both claims were based on the same pipes, the Respondent submits that the inconsistency does not assist the Appellant's appeal. The Appellant was aware of the issue of the noisy and rusty pipes from as early as August 2022 and had sought the repair of the pipes to prevent the pipes from vibrating and rattling, which was the basis of the rent reduction claim in the September 2022 application. However, the claim for compensation based on the falling piece of pipe on 24 December 2022 was a separate claim to the June 2022 application. It could not have formed part of the earlier application given that the incident occurred two months after the June application was determined on 21 October 2022.

Consideration

1. The High Court in Tomlinson v Ramsay Food Processing Pty Limited [2015] HCA 28 (French CJ, Bell Gageler and Keane JJ, [22]) described the principles of res judicata and estoppel: Three forms of estoppel have now been recognised by the common law of Australia as having the potential to result from the rendering of a final judgment in an adversarial proceeding. The first is sometimes referred to as "cause of action estoppel". Estoppel in that form operates to preclude assertion in a subsequent proceeding of a claim to a right or obligation which was asserted in the proceeding and which was determined by the judgment. It is largely redundant where the final judgment was rendered in the exercise of judicial power, and where res judicata in the strict sense therefore applies to result in the merger of the right or obligation in the judgment. The second form of estoppel is almost always now referred to as "issue estoppel". Estoppel in that form operates to preclude the raising in a subsequent proceeding of an ultimate issue of fact or law which was necessarily resolved as a step in reaching the determination made in the judgment. The classic expression of the primary consequence of its operation is that a "judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies". The third form of estoppel is now most often referred to as "Anshun estoppel", although it is still sometimes referred to as the "extended principle" in Henderson v Henderson. That third form of estoppel is an extension of the first and of the second. Estoppel in that extended form operates to preclude the assertion of a claim, or the raising of an issue of fact or law, if that claim or issue was so connected with the subject matter of the first proceeding as to have made it unreasonable in the context of that first proceeding for the claim not to have been made or the issue not to have been raised in that proceeding. The extended form has been treated in Australia as a "true estoppel" and not as a form of res judicata in the strict sense. Considerations similar to those which underpin this form of estoppel may support a preclusive abuse of process argument. (citations omitted)
2. The terminology of "cause of action" estoppel has subsequently been "recognised as problematic given the range of senses in which the expression 'cause of action' tends to be used. The relevant sense is that of title to the legal right established or claimed. Especially in a statutory context, such as the present, the form of estoppel would be better referred to by the more generic description of 'claim' estoppel" (Clayton v Bant [2020] HCA 44 (Clayton v Bant) (Kiefel CJ, Bell and Gageler JJ at [28]).
3. In relation to the doctrine of Anshun estoppel, the party asserting the application of Anshun estoppel bears the onus of proving the unreasonableness in all of the circumstances of the choice made by a party to refrain from asserting such rights as were legally available to be asserted by that party in the earlier proceedings (Clayton v Bant (Kiefel CJ, Bell and Gageler JJ at [30])). The Court went on to note (at [31]): [The husband's] case for the existence of Anshun estoppel seems to have been put on the basis that the fact that the wife could have asserted a right in the Dubai proceedings meant that she should have asserted that right in the Dubai proceedings in the sense that it was unreasonable for her not to have done so. That approach to Anshun estoppel has rightly been said to involve "fundamental error". As was pointed out in Port of Melbourne Authority v Anshun Pty Ltd, "there are a variety of circumstances…why a party may justifiably refrain from litigating an issue in one proceeding yet wish to litigate the issue in other proceedings eg expense, importance of the particular issue, motives extraneous to the actual litigation, to mention but a few.
4. The "focus of the common law doctrine of estoppel is on 'substance rather than form'" (at [34]) and is: Founded on the twin policies of ensuring finality in litigation (thereby promoting respect for and efficient use of courts as well as avoiding inconsistent judgments) and of ensuring fairness to litigants (by sparing them the stress and expense of duplicative proceedings).
5. In respect of the decision under appeal in these proceedings, the reasoning identifies Anshun estoppel and res judicata, or cause of action estoppel, as having potential application, although it is not immediately clear from the reasoning which form of estoppel the Tribunal member relies upon to dismiss the proceedings. The relevant principles describing Anshun estoppel and res judicata are set out in the reasons at [10] and [11].
6. At [10], the basis of a claim for Anshun estoppel is described as a being the preclusion of a party "in subsequent proceedings from raising a matter which should properly have been raised in the first proceedings". The Tribunal Member identifies the High Court decision in Port of Melbourne Authority v Anshun (1981) 147 CLR 589, 602-3 as articulating the test to be applied to establish Anshun estoppel.
7. The Tribunal Member describes (at [11]) the separate principle of res judicata as being that "parties are barred from litigating the same dispute again, once a final judgement has been rendered by a competent court".
8. The relevant findings were that:

• the Appellant "cannot raise these issues as they have already been raised and dealt with as part of the previous proceedings at the Tribunal. The tenant raised the rusty noisy pipes in the ceiling in the previous proceedings as part of the water leak roofing issue" ([20])
• the Appellant is estopped from raising the matter of the rusty pipes and the noise in the ceiling because they have "been already dealt with in previous proceedings or are essentially part of the same issue" ([20])
• the "rusty pipes above the bathroom formed part of the claim SH22/31719 that was determined by the Tribunal on 21 October 2022. In particular I rely on Paragraphs 5,6 and 7 of [the Appellant's] affidavit of 27 September 2022 where these all relate to the roofing issue that was raised in his affidavit in previous proceedings in the Affidavit of 4 October 2022" ([23])

1. We note that the Respondent's submissions were to the effect that the Tribunal applied the doctrine of Anshun estoppel to the case and did so without demonstrated error. With respect, we disagree that the Tribunal applied the doctrine of Anshun estoppel in these proceedings despite the description of the principle given in [10]. The Tribunal Member did not make any reference in the written reasons to a finding that the Appellant should have made the claim for rent reduction due to the noisy and rusty pipes issue in the June 2022 application and that it was unreasonable for him not to have done so. The Tribunal Member in fact found that the Appellant had raised the noisy and rusty pipes issue in the June 2022 proceedings (by way of his 4 October affidavit) thus he was estopped from bringing that claim in the September 2022 application.
2. It seems to us that the Tribunal applied the principles of cause of action (or claim) estoppel and/or issue estoppel. We had to consider whether the Tribunal erred in the application of those principles.
3. The compensation claim made by the Appellant was based on an allegation that the Respondent had breached provisions of the RTA, identified as ss 50(2), 52(3), 63(1), 64 or 65. We note that the claim could have been made on the basis that the rent payable was excessive having regard to the withdrawal of services under s 44(1)(b) of the RTA but it would need to have been argued on a different basis and would have needed to address the criteria set out in s 44(5). Compensation in the form of rent reduction was sought until the repair was complete. Completion of the repair, as was accepted by both parties for the purposes of the appeal, occurred by 20 December 2022.
4. A claim for compensation by reference to rent reduction on the basis of the noisy and rusty pipes was not a claim made in the original June 2022 application nor was it explicitly determined in the decision on 21 October 2022.
5. However, was a claim in substance asserted and determined in those proceedings that the Respondent had breached the Appellant's right to quiet enjoyment, or the other sections referred to in the September 2022 application, as a result of the failure to repair the noisy and rusty pipes?
6. Alternatively, was an issue of fact or law resolved in the 21 October 2022 decision concerning the allegation of noisy and rusty pipes?
7. The issue of the noisy and rusty pipes was not alleged by the Appellant to be caused by, or related to, the actions of the contractors that carried out roofing work commencing in January 2022. The alleged quality of the work performed by the contractors, leading to damage including damage caused by water penetration into the apartment building, formed the basis of orders sought in the March 2022 joint application and June 2022 application. The issue of the noisy and rusty pipes did not form part of the Appellant's original June 2022 application for the simple reason that, according to the Appellant, the noise and inconvenience caused by the noisy pipes did not start until later in 2022. The Appellant first raised the issue of the noisy and rusty pipes with an agent of the Respondent in August 2022, an e-repair request registered on 5 September 2022 and he filed the September 2022 application solely in relation to this issue. That application was subsequently amended on 29 December 2022 to include the separate compensation claim concerning the pieces of falling pipe.

Appeal dealt with by way re-hearing

1. We considered whether to rehear Order 3 of the September 2022 application rather than remit this part of the application to be reconsidered by the Tribunal. In the particular circumstances of this case, we decided to do so. In exercising our discretion in this manner we took account of: the request made by both parties that should the appeal be upheld, we rehear the matter so as to bring finality to the proceedings; the modest quantum of compensation sought by the Appellant; and that bringing the proceedings to a conclusion would be of benefit to the parties who have an ongoing relationship of tenant and landlord. In our view rehearing the September 2022 application, rather than having the Tribunal reconsider the matter, facilitated the resolution of the issues between the parties in a proportionate manner having regard to the cost to the parties and the Tribunal and the importance and complexity of the subject matter (s 36(4) of the NCAT Act). It also facilitates the resolution of the real issues in the proceedings consistent with the guiding principle in s 36(1) of the NCAT Act.
2. Neither party sought to submit fresh evidence and were content for us to proceed on the basis of the material filed in the appeal which included affidavit evidence and written submissions filed in the proceedings SH 22/43366 and also SH 22/31719.
3. We regard the Appellant's application for a reduction in rent for the period 5 September 2022 to 20 December 2022 arising from a failure to repair noisy and rusty pipes as a claim for compensation under s187 of the RTA for breach of s 50(2) of the RTA.
4. We do so on the basis that the Appellant's September 2022 application, supported by his Affidavit sworn on 27 September 2022, explicitly references s 50(2) of the RTA. In his oral submissions in the rehearing of this matter, the Appellant confirmed that the focus of his application is the disturbance caused to him (and his wife) by the noise of the rusty pipes and its interference with their daily life including sleep and television watching. Although the Appellant listed other sections of the RTA in his September 2022 application (ss 52(3), 63(1), 64 and 65 of the RTA) he did not make further reference to them in the evidence and submissions he filed in SH 22/43366. Nor did he do so in his submissions in the rehearing. In any event, and for the sake of completeness, had we been required to consider them, we would have dismissed them for the following reasons: 1. section 52(3) of the RTA requires a landlord to comply with its statutory obligations relating to the health or safety of the residential premises. The Appellant did not advance an argument in his evidence or submissions that the noise caused by the rusty pipes breached health and safety obligations owed by the Respondent. We were not satisfied of a breach of s 52(3) of the RTA. 2. section 63(1) of the RTA requires a landlord to provide and maintain residential premises in a reasonable state of repair, having regard to the age of, rent payable for and prospective life of the premises. It did not appear to be contested that the repair of the pipes in question took approximately 15 weeks, calculated from the date that the Appellant submitted an e-Repair request on 5 September 2022 to the date of repair on 20 December 2022. As previously noted, the Appellant did not press this particular aspect of his application and did not respond to the Respondent's submissions on the appeal that the Respondent acted diligently in carrying out repairs to the vibrating and rattling pipes and satisfied its obligation under s 63(1) of the RTA. We were not satisfied that there had been a breach of s 63(1) of the RTA. 3. Sections 64 and 65 of the RTA concern urgent and other repairs and Tribunal orders for repair. These do not have application for a claim for compensation under s 187 of the RTA and are dismissed.
5. We note that the Respondent focussed its written submissions on appeal on addressing the Appellant's claim on the basis of s 44 of the RTA (tenant's remedies for excessive rent). The Appellant's application, however, did not seek orders pursuant to s 44 of the RTA, despite his use of the language of "rent reduction", so we have not determined his application of the basis of this provision. In addition, the Appellant's material does not address any of the requisite elements of s 44(5) of the RTA or use the language of s 44(1)(b) which includes excessive rent and "reduction or withdrawal by the landlord of any goods, services or facilities". Noise emitting from the landlord's roof fixtures which are not promptly repaired to stop the noise, does not neatly fit the description of a reduction in goods, services or facilities so it would have been odd for the tenant to have relied on this subsection, and we find he did not.
6. Although a reference was made by the Tribunal Member in the written reasons dated 15 February 2023 to s 44(1)(b) of the RTA (at [14]), the Tribunal Member did not go onto consider the application of this provision any further, did not suggest that the appellant had relied on it, and made no further reference to it. We did not have the benefit of a transcript of those proceedings which may have indicated if s 44 was addressed in the hearing.
7. Our consideration of the Appellant's compensation claim focussed on whether the Respondent was in breach of its obligation under 50(2) not to interfere with, or to cause or permit any interference with, the Appellant's reasonable peace, comfort or privacy as a consequence of the noisy and rusty pipes for the period 5 September to 20 December 2022.
8. The Appellant's evidence as to the impact of the noisy and rusty pipes on the Appellant is included in the affidavits: 1. sworn on 27 September 2002 - referencing the pipes in question: "they vibrate in windy conditions and keep my wife and me awake at night. Last night we could not get any sleep" (par 7, albeit this is a reference to a time period prior to 5 September 2022); 2. the same affidavit that sets out the e-repair request registered on 5 September 2022 (at par 9) that makes reference, relevantly, to "2 pipes penetrating through the roof which are broken. They vibrate/rattle in windy conditions keeping my family awake at nights"; and 3. sworn on 4 October 2002 - references are made to pipes that "vibrate and rattle keeping us awake at night" (paras 6 and 7)
9. In his outline of submissions in reply filed on 5 January 2023, the Appellant (at page 4) made reference to the "rusty vibrating pipes keeping me awake at night and preventing me to enjoy watching television during the day".
10. We note that at the hearing on 19 January 2023, the Appellant appeared in person and gave sworn oral evidence (at [15] of the written reasons dated 15 February 2023). The only other reference in the decision to this issue is at [18]: "There is limited evidence before the Tribunal as to the rusty pipes or the noise beyond the claims by Mr Vok". As previously noted, we were not provided with a transcript of these proceedings.
11. As noted in Lazarevska v Ozturk [2017] NSWCATCD 21, at [57]: The word "reasonable" in sub-section 50(2) qualifies the extent of the landlord's obligation. A tenant's right to quiet enjoyment is not breached by mere inconvenience - a serious or substantial interference with the right must be established: (citations omitted)
12. We are satisfied that the noise resulting from the rusty pipes interfered with the Appellant's reasonable peace and comfort between 5 September and 20 December 2022 when it was windy. In the absence of evidence as to the climatic conditions during this period, we are satisfied that it was windy for some of the time but not all of the time. We accept that when it was windy, it disturbed the Appellant's sleep and interfered with watching television and that this went beyond "mere inconvenience". On the evidence before us, we assess the compensation to which the Appellant is entitled for a breach of his entitlement to quiet enjoyment as $500 which is less than $5 each day for the period the noise repair was reported until it was repaired. We note the noise started before the report on 5 September 2022 but the Respondent could not be said to have permitted interference with the Appellant's reasonable peace or comfort if the landlord was not aware of the noise issue.
13. It follows that the appellant is entitled to an order pursuant to s 187(1)(d) of the RTA that will require the Respondent to pay him compensation in the amount of $500. This is to be paid within 28 days.

Orders

1. Appeal allowed.
2. Order 3 made on 15 February 2023 is set aside and another decision is substituted for it, namely that the Respondent pay the Appellant $500 within 28 days of these orders.

---

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: 23 August 2023