Young & Conway v Chief Executive Officer, Housing [2020] NTSC 59

[3]Young & Conway v Chief Executive Officer, Housing [2020] NTSC 59 | Case summary | Zoe

[13]

[1] This is an appeal from a decision of the Northern Territory Civil and Administrative Tribunal (NTCAT).[1]
[2] Four of the five questions raised on the appeal are relevant to the cases of both appellants, Ms Enid Young and Mr Robert Conway. The fifth question is relevant to Ms Young only. Sadly and regrettably, Mr Conway is now deceased. The Court was notified of his death by his lawyers on 24 February 2020.[2]
[3] Counsel for the appellants impressed on the Court that the parties and their representatives treat these proceedings as sample cases which represent another 70 applicants, all of whom are residents of Ltyentye Apurte, also known as Santa Teresa. All other applicants have similar legal and factual issues to be resolved under or associated with the Residential Tenancies Act 2018 (NT) (RTA).[3] The respondent is the Chief Executive Officer (Housing) who is the landlord.
[4] The appellants and the other applicants who have pending cases before the Tribunal are remote housing tenants. It is understood that once a number of the legal issues are clarified, the parties will attempt to resolve the outstanding cases on the basis of a settled legal framework. While it is appreciated this appeal may have consequences for the conduct of the other cases, and it is laudable that counsel are attempting to resolve the balance of the cases, the focus of the considerations here are confined to the legal issues raised on behalf of the two appellants and the response to the appeal by the Chief Executive Officer (Housing). However, the other 70 applicants who intend to raise similar issues before the Tribunal is a factor which may be regarded in assessing whether allowing the appeal on any ground made out would be in the interests of justice. The interests of justice is a significant consideration when determining whether to allow an appeal. [4]
[5] This case is unlikely to be a sound vehicle for a clear statement of principles to guide other litigants given the historical complexities around the initial pleadings and the late disclosure of important materials which appears to have led to some issues not being finally ventilated or determined by the Tribunal.
[6] The jurisdiction of this Court to hear an appeal from NTCAT is confined to a question of law pursuant to s 141 of the Northern Territory Civil and Administrative Tribunal Act 2014 (NT) (NTCAT Act):

[22]

[9] It is necessary to consider the procedural history given that the resolution of some of the questions of law raised by the appellants rely on an understanding of how the litigation before the NTCAT developed.
[10] In brief, the Initiating Applications filed by the appellants in the NTCAT sought the following relief. Ms Young sought orders that the respondent make repairs to her premises, House 165 Santa Teresa Community, pursuant to s 63 of the RTA, which enables the NTCAT to order a landlord to ensure specified repairs to rental premises are made. The Initiating Application referred to the appellants' previous notice to the respondent which listed nine items requiring repairs. It sought the payment of compensation under s 122 (1) of the RTA for loss of amenity arising from the failure on the part of the respondent to carry out the repairs. Additionally, orders for the production of evidential material from a number of entities associated with housing and repair work at Santa Teresa were sought.[9] The Amended Initiating Application filed by Ms Young provided further particulars of the subject tenancy agreement including dates relevant to the rectification of repairs which she claimed had not been carried out. Further, Ms Young claimed the respondent failed to maintain the rental premises in a habitable condition as required by s 48 of the RTA.[10] Compensation was sought pursuant to s 122 RTA for loss which was claimed to be the result of breaches of s 48 and/or s 57 of the RTA.
[11] The Initiating Application filed on behalf of Mr Conway[11] was in respect of his residence at House 195 Santa Teresa. He sought an order for emergency repairs under s 63 RTA and referred to thirteen emergency repairs in his previous notice. The Initiating Application sought an order for compensation under s 122(1) of the RTA. The Application also sought evidential material from various entities associated with housing repair work at Santa Teresa. The Amended Initiating Application filed on his behalf sets out further particulars of the claim including the details of rectification required and the claim that the respondent failed to maintain the rental premises in a habitable condition as required by s 48 of the RTA.[12]
[12] The Amended Initiating Applications were taken to have replaced the Initiating Applications.[13]
[13] The Response and Counterclaim initially inter alia, claimed both appellants owed the respondent sums for unpaid rent. The quantum claimed was significantly reduced during the course of the hearing and in the case of Ms Young, was not pursued. In the case of Mr Conway, the sum claimed for unpaid rent was not proven before the Tribunal. Additionally, the respondent alleged certain damage was caused by the appellants to their respective rental premises and the counterclaims were formulated accordingly. The damage was not proven during the course of the hearing.
[14] In their respective defences to the counterclaims, both appellants claimed that, at the time of entry into the tenancy agreement, they: were elderly and in the case of Mr Conway, suffered from serious illness; spoke English only as a second language; possessed very limited numeracy and literacy skills, lacked commercial experience, lacked financial or legal advice and had a cultural tendency towards gratuitous concurrence.[14] In the light of those factors they claimed the respondent knew or ought to have known that they did not understand the nature and content of the tenancy agreement, including their obligations in relation to rent payable, rental arrears and other factors relevant to the counterclaim. As a result of those factors, both appellants claimed reliance on the respondent to collect the correct rent and that the respondent was estopped from claiming arrears. Additionally, the appellants argued the respondent ought not to receive the benefit of any discretion that potentially could be exercised under s 122 of the RTA or have any amount of compensation awarded to the appellants reduced.
[15] It was necessary to consider the pleadings as the first question to be addressed on appeal necessitates consideration of whether the Tribunal was in error by not determining whether the tenancy agreements were void on the grounds of being unconscionable dealings according to the principles in Commercial Bank of Australia Ltd v Amadio.[15] That question requires consideration of whether the issue was genuinely raised before the Tribunal such that its merits should have been determined; notwithstanding, it does not appear in the Initiating Applications or the Amended Initiating Applications. The issue was, however, raised in the defence to the counterclaim. On appeal, the appellants argued the Tribunal was obliged to consider the merits of the submission on Amadio. The Tribunal declined to do so.
[16] The NTCAT proceeded on the basis, consistent with Cavanagh v The Chief Executive Office (Housing),[16] that notwithstanding the arrangements in place under the Northern Territory National Emergency Response Act 2007 (Cth) with the community of Santa Teresa, the RTA applied to the dispute. On a number of issues before the NTCAT, it is apparent there was a lack of evidence and records. The difficulties encountered by the learned member when dealing with deficiencies in the evidence and the untimely production of material, which impacted detrimentally on the presentation of the case before the Tribunal, were reflected in his comments, particularly in the reasons of the costs decision following the hearing.[17]
[17] The Tribunal found the relevant tenancy agreements were invalid pursuant to s 19(4) of the RTA. Specifically in relation to the case of Ms Young, it found the terms relating to maintenance and cleanliness were not consistent with the terms prescribed in s 51(1)(a) of the RTA and therefore were contrary to the requirements of s 19(1)(d).[18] In the case of Mr Conway, the 2011 tenancy agreement was held invalid under s 19(4) of the RTA because it was not signed by the respondent, contrary to the requirements of s 19(1).[19] The Tribunal found that in the case of invalidity, the relevant terms were governed by the "Prescribed Agreement" in Schedule 2 of the Residential Tenancies Regulations 2000 (NT). The Tribunal rejected the appellants' argument that the prescribed agreements were void for uncertainty and that they were entitled to compensation for overpayment of rent and the return of security deposits.
[18] The Tribunal also rejected the claim that the premises rented by the appellants were 'Improvised Dwellings' for which no rent would be payable under the respondent's Remote Housing Rent policy.[20] With the exception of two periods when Ms Young was not provided with an air conditioner, the Tribunal rejected the claim the premises were not habitable under s 48 of the RTA.
[19] After a detailed analysis of the deficits in the premises, the notifications, the time frames and the reasonableness of the response, the Tribunal made the following awards of compensation in favour of Ms Young. The respondent was ordered to refund rent ($4735.80) for the period that the premises was uninhabitable (540 days) due to the failure on the part of the respondent to install an air conditioner under s 48(1) of the RTA. For the distress arising from the physical inconvenience which persisted for a very long period of time, she was awarded $4,000.[21] In relation to the breach of duty to repair the back door under s 57(1), she was awarded nominal damages of $100 and for the breach of duty to repair the stove, she was awarded $200.[22] In total, the Tribunal concluded Ms Young was entitled to an order in the sum of $9,035.80 for the respondent's failure to comply with the prescribed agreement or their obligations under the RTA relating to that agreement (s 122(1)(a)).[23]
[20] Mr Conway was awarded $1,000 for disappointment and distress recoverable due to significant physical inconvenience as a result of the failure of the respondent to fix his leaking shower and replace tiles following repairs to his shower taps. This meant he and his wife had to clean up water every time they had a shower. The physical inconvenience was exacerbated by their poor health.
[21] As mentioned above, the respondent's counterclaims were dismissed.

[24]

[22] The appellants argued the failure of the NTCAT to consider the merits of the Amadio claim constituted an error of law. The reasons do not deal with the Amadio principles, nor do the reasons discuss the evidence relevant to that issue in any detail, or the submissions which were made on that issue. The Tribunal found that the claim fell outside of the pleadings. The claim was not made in a conventional manner. Notwithstanding the Tribunal must act with as little formality and technicality as possible,[25] the case was conducted with pleadings[26] and parties were represented by counsel. Additionally, evidence was called and witnesses were cross examined in a similar manner as a court.
[23] The Tribunals reasons are detailed and considered on all other issues, save for this one. While the Tribunal exercises no general equitable jurisdiction, it has been held the Tribunal exercises jurisdiction similar in nature to equitable jurisdiction through s 122 of the RTA, which regulates the payment of compensation and additionally on the basis of s 53 of the NTCAT Act.[27] The appellants submitted the error of law was: the failure on the part of the Tribunal to evaluate a submission of substance;[28] the denial of procedural fairness referable to two elements of the hearing rule, which requires both that the affected person have an opportunity to provide submissions[29] and to be heard by the decision-maker when the submission is given;[30] a failure to exercise jurisdiction or a failure by the decision-maker to expose a path of reasoning.[31]
[24] The Tribunal did not deal with the merits of the Amadio claim. However, as may be appreciated from the brief outline given above, the Amadio issue was raised only in the appellants' Amended Initiating Applications in defence of the counterclaim. Specifically, it was put forward in the context of raising estoppel as an answer to the s 122 claims in order to either exclude the respondent from receiving compensation, or reduce the scope for such a claim. In Cavanagh v Chief Executive Officer (Housing),[32] Southwood J held the power to deal with equitable estoppel was reasonable and necessary for the determination of an application for compensation under s 122 of the RTA.
[25] At a deeper level, however, the appellants argued there were more fundamental reasons why the Amadio issue was not made explicit prior to the hearing before the Tribunal. The appellant argued the lack of provision of relevant documents in a timely fashion hindered the ability to properly plead the Amadio principles. The respondent submitted the appellant was invoking the Amadio principles simply as an alternative route to its ultimate goal, namely, to have all of the rent repaid by the respondent. That is a reasonable observation; however, if the tenancy agreements came into existence in circumstances that engage the Amadio principles, the appellants may be entitled to relief in those terms.
[26] The respondent raised the following problems with this ground of appeal. In addition to the Amadio principles not being set out in the pleadings, those principles were not addressed in the appellants' opening before the Tribunal. On the respondent's view, it was also not addressed in the evidence in chief or in the unattested declarations. Given the Amadio claim was the basis for claiming the repayment of all rent, the respondent submitted it did not have a fair opportunity to deal with the issue because it was essentially formulated in the appellants' closing submissions (although this point was disputed and will be discussed below). The focus of the respondent throughout the case was primarily on the repairs and proving its counterclaim. The respondent submitted it should have been given an opportunity to lead additional evidence before the Tribunal because if the claim based on Amadio principles was successful, the 2010/2011 tenancy agreements would be declared void. The respondent argued this was a new claim and opened the argument for repayment of the rent. The claim for repayment of rent paid was not pleaded.
[27] While senior counsel for the respondent accepted the appellants' response to the counterclaim pleaded reliance on the respondent followed by estoppel,[33] it was emphasised the appellants' response did not allege that the agreements were void or voidable. It was merely that the respondent be estopped from enforcing a right to payment of arrears. The respondent argued the claim of unconscionable conduct was a different claim. As such, it was submitted that if the Tribunal found Amadio applied to the circumstances, the respondent should have had an opportunity to lead evidence and make the case about the appropriateness of any discretionary remedy. This would require consideration of whether any order for rental payment would be just in circumstances where the appellants had the benefit of occupying the premises or had been paid compensation.
[28] On appeal, counsel for the respondent noted that an application for an adjournment and for leave to reopen the respondent's case was made on day four of the NTCAT hearing. Senior counsel on appeal drew attention to the detailed application made by the respondent's counsel at the NTCAT hearing, to the effect that if the respondent was forced to close its case, it would be a breach of natural justice given the Amadio point was a new matter in the appellants' case.[34] The member rejected the respondent's application for an adjournment in the following terms:[35]

[32]

[31] On appeal the respondent also argued that the claim that the tenancy agreement was void was made on the basis that there was a valid tenancy agreement in order for damages to be awarded under s 122 of the RTA. It was submitted that if the tenancy agreement was declared void, the order below awarding damages to the appellants should not have been made. Further, the Amadio argument was put in the alternative. The respondent submitted that, given the Tribunal agreed with the primary argument that the tenancy agreements were invalid under the RTA, there was no need for the Tribunal to consider whether they were void under the Amadio principles.
[32] While the arguments on behalf of the respondent have some appeal, it is clear there were procedural problems that were likely to have skewed the direction of the proceedings well before the hearing. The preliminary processes were obviously fraught. The Tribunal's decision on costs tends to confirm that both parties fundamentally changed their cases during the trial because important documents were only produced by the respondent just prior to the hearing's commencement. The member makes reference to a number of examples where, in his opinion, the respondent had not acted as a model litigant would be expected to act.[40] For example, the member refers to the respondent failing to bring the existence of the 2017 tenancy agreement to the attention of Southwood J when Cavanagh v Chief Executive Officer (Housing)[41] was heard in the Supreme Court.[42]
[33] On appeal, counsel for the appellants stressed that at the time of filing the Initiating Applications, the respondent had failed to provide a copy of the 2017 tenancy agreement. Additionally, in respect of some of the 2010 agreements, the appellants' requests for discovery of the respondent's versions were ignored and requests for the relevant documents were met by the following response from the respondent's counsel who appeared at the Tribunal: "We remind you that these proceedings are in the NTCAT jurisdiction. It is not a jurisdiction of pleadings. You are not as of right entitled to particulars and discovery as you may be in other jurisdictions". On appeal, the Court was told this was the response after orders were made for particulars and discovery. The respondent was prepared, at least for some time, to continue with less formal arrangements before the Tribunal. The Landlord has a statutory obligation to keep and produce relevant records.[43] Both parties materially altered their case during the hearing to be responsive to the issues which only then emerged or became clearer once the records, including all the relevant tenancy agreements, were produced.
[34] The following additional points were raised by the appellants on appeal. Notwithstanding that there were pleadings and counsel appearing at the Tribunal, the essence of the NTCAT remains its accessibility and informality. The Tribunal could have adapted to changes in the proceedings, given what occurred in the lead up to the hearing. The evidence called by the appellant was tailored and specific, and was obviously led to engage the Amadio principles. For example, evidence was led from Ms Young about her own and her family's linguistic background; her lack of language skills; her inability to read; and the circumstances of signing the lease in a rushed manner without assistance.[44] Similar evidence was led from Mr Conway about being rushed at the time of signing and some brief supporting evidence was led. Supporting evidence on some points was adduced from Ms Annie Young and the witness for the respondent, Ms Jacobson.
[35] In terms of when the respondent became aware of the Amadio issue, and to demonstrate it was no surprise to the respondent that the principles would be raised, counsel for the appellants drew the Court's attention to the respondent's closing submissions which engaged with the Amadio principles:[45]

[37]

[36] The date of those written submissions is 21 November 2018, which was day three of the Tribunal hearing. Those submissions were made before the appellant made oral submissions. On 22 November 2018, counsel for the appellant made oral submissions, which was day four of the hearing. The appellants' oral submissions included the submission that the preferable position was that the tenancy agreements be declared void and that as a consequence the alternative positions fell away.[46] The oral submissions included details, in summary form, of five circumstances drawn from the evidence to establish that the case fell within the Amadio principles.[47] The oral submissions addressed relevant legal principles including a discussion of Thorne v Kennedy,[48] a recent decision based, in part, on the Amadio principles.[49] The appellants' written submissions were filed and received by the Tribunal one month later.[50] The submissions include the heading "The principles from Amadio make each agreement voidable" and continue to discuss the principles and the relevant evidence.[51]
[37] In terms of the submission that there was no need to deal with the Amadio principles, as the Tribunal found the tenancy agreements invalid for other reasons, the consequences of a finding that either of the tenancy agreements were void on the basis of Amadio were potentially more beneficial for the appellants. The respondent would need to be given an opportunity to put its case that rent should not be repaid, but as a threshold matter, it is not correct to suggest the result of a successful finding on the basis of the Amadio principles would be the same as the invalidity finding which was made under the RTA. If the agreements were found to be void, there would be no prescribed tenancy agreement imposed under s 19(4) of the RTA.
[38] Under s 53(1) of the NTCAT Act the Tribunal must act fairly and according to "the substantial merits of the matter". Once the history of the proceedings is fully appreciated, it is clear the Amadio matter was before the Tribunal but not dealt with by the Tribunal. There were procedural and timing reasons why the Amadio issue was not included in the Amended Initiating Application, however the relevant evidence was clearly raised on behalf of the appellants and was directed to that issue. The respondent also knew of evidence which it could call and which it submitted was relevant to that issue; however, the respondent was not permitted to re-open its case to deal with it. The respondent was aware that the issue was effectively being raised as a defence to its counterclaim at an earlier time. The appellants' closings, both the oral submissions and the later written submissions which were filed a month after the hearing, dealt with the issue comprehensively, apparently with the expectation that this matter would be considered by the Tribunal. The respondent, at least during the course of the hearing and most likely at around day two of the hearing, realised the significance of the issue, hence foreshadowed the application to re-open proceedings. That application having been refused, the respondent still made submissions in its closing about the issue. The Tribunal then determined not to deal with the merits of the matter because it was not pleaded in the Amended Initiating Application.
[39] Although the balance of the issues were dealt with comprehensively by the Tribunal in what was obviously fraught and complex proceedings, the Tribunal failed to exercise jurisdiction[52] in relation to the Amadio principles and/or failed to evaluate a submission of substance.[53] The freedom of the NTCAT to determine the issues which it needs to address, is subject to s 53(1) of the NTCAT Act and the duty to deal with the substantial merits.
[40] The failure to determine an issue of significance gives rise to a reviewable error. Further, the failure to make a finding on a particular matter raised by an applicant, in some cases, may reveal an error of law.[54] In Dranichnikov v The Minister for Immigration and Multicultural Affairs,[55] Gummow and Callinan JJ noted that the Refugee Review Tribunal had treated the claimant's case as based on membership of a particular social group, namely "businessmen in Russia", whereas the case the applicant had presented was a significantly narrower one, namely membership of the group comprising "businessmen who publicly criticised and sought reform of the law enforcement authorities to compel them to take effective measures to prevent crime".[56] The failure of the Tribunal to determine the issue raised by the applicant was treated by their Honours as a failure to exercise jurisdiction and hence a jurisdictional error. It was said to be analogous to the circumstances in Minister for Immigration and Multicultural Affairs v Bhardwaj[57] in which the High Court found that the Tribunal's failure to consider a matter raised before it constituted a breach of natural justice.[58]
[41] In SZSSC v Minister for Immigration and Border Protection[59] Griffiths J considered a submission on whether the Tribunal had considered and evaluated all submissions of substance relating to an extortion claim. After citing Dranichnikov and dealing with relevant submissions, his Honour made a number of comments. His Honour said he did not accept that procedural unfairness occurs only if the Tribunal has failed to deal with a substantial and clearly articulated submission which relies upon an established fact. That would preclude a finding of procedural fairness or constructive failure to exercise jurisdiction if the Tribunal failed to deal with the submission of substance relating to a legal issue. His Honour said the error in Dranichnikov was not merely described as a denial of natural justice or procedural unfairness, it was also regarded as a constructive failure to exercise jurisdiction.[60] When determining whether or not a Tribunal has committed jurisdictional error by failing to evaluate a substantive and clearly articulated submission, his Honour stated:[61]

[50]

[52] I do not agree s 19(4) of the RTA or the Schedule 2 prescribed tenancy agreement is to be applied in the manner submitted on behalf of the appellants. The provisions under s 19(4) and the Schedule 2 prescribed tenancy agreement apply if there is a tenancy agreement in existence. The Schedule 2 prescribed tenancy agreement will then apply to specify the terms of the agreement. Aside from the question of whether the agreement was void by virtue of the submissions under question (A) above, the case proceeded before the Tribunal on the basis that there were tenancy agreements in existence. However, due to breaches on the part of the respondent, various claims for compensation were made under the RTA. In terms of the definition of a tenancy agreement, s 4 of the RTA defines tenancy agreement to mean an agreement under which a person grants to another person for valuable consideration a right (which may be, but need not be, an exclusive right) to occupy premises for the purpose of the residency.
[53] As a matter of fact, the Tribunal found the appellants paid money to the respondent by way of rent. As such, there was a valuable consideration exchanged for the right of occupancy and a tenancy agreement therefore existed. If the tenancy agreement exists, then notwithstanding its deficiencies, by operation of the RTA, the residential tenancy agreement provided in Schedule 2 of the Regulations will apply. This is the very purpose of the prescribed agreements.
[54] Regardless of the construction point raised on behalf of the appellants, the member found as a matter of fact the Mr Conway agreed to pay $184 per week. The fact that the actual rent paid may have been less than $184 per week from time to time was, as the member held, irrelevant. The approach of the Tribunal was largely in accordance with the way the appellants put their case. The member painstakingly considered all of the facts, including the tenancy agreements which were found to be invalid. The member did not rely on the invalid tenancy agreements exclusively. He took into account how much the appellants had been paying over the material time. The cumulative force of the evidence in relation to Mr Conway was that there was an agreement to pay $184 per week, and in relation to Ms Young, $184 per week.[68] Further, the Schedule 2 prescribed tenancy agreement applied in relation to the respondent's failure to sign the tenancy agreement with Mr Conway.
[55] The amount the appellants were paying to the respondent was clear. The Tribunal found the agreed amount of rent did commence at the beginning of the tenancy. In my view, clause 2(2) of the Schedule 2 prescribed tenancy agreement needs to be read in the context of how tenancy agreements generally come into existence, including importantly periodic tenancies. In my view, the purpose of the clause is to place an obligation on the tenant to pay rent in advance. The use of the words "if any" indicates the legislature contemplated circumstances where there may not have been agreement as to rent at the commencement of the tenancy agreement.
[56] Even if I am wrong in concluding how the prescribed agreement applies, the Tribunal found as a matter of evidence that both appellants agreed the rent before the commencement of the prescribed tenancy.
[57] I would not uphold this ground.

[56]

[61] The appellants argued the Tribunal ignored that part of the Remote Rent Framework which referred to an "improvised dwelling" as one that "does not have the full range of amenities available" read with the definition of "amenity", namely, "a feature that a dwelling has that is additional to standard features". The appellants argued that if the Tribunal had applied the definition as it should have, it would have led to the Tribunal considering the full range of features additional to standard features available. It was also argued the Tribunal substituted its own definition by defining an improvised dwelling as one that did not have "amenities one would expect to find in public housing in a remote community". The appellants submitted the Tribunal applied a substantially more limited definition than the respondent's policy. It was argued the reference point of the respondent's policy was not "amenities one would expect" but rather "features additional to standard facilities".
[62] The Remote Rent Framework is a helpful document for housing officers and others who work in the field of providing remote public housing, and for tenants who live in remote areas. Although, as the respondent points out, there is no evidence to indicate the Framework was incorporated into any of the tenancy agreements, nor the Schedule 2 prescribed agreement. However, the Framework, including the glossary, may be relevant and of assistance in consideration of the appellants' equitable claims for rent repayment. This is especially so given the Framework was distributed in remote communities.
[63] It does not appear there was evidence as to what constituted "standard facilities" in the context of remote rental properties. On the one hand, it is obvious that in relation to Ms Young's rental property, a door would be considered a standard facility. In the usual course of events, which is accepted did not occur here, a defect such as a missing door would most likely be of a temporary nature and would not readily lead to characterising the property as being without "standard facilities". However, given the extended period that the premises was without a back door, it must be acknowledged that for some time, Ms Young's property was without at least one standard facility. Both Ms Young's and Mr Conway's properties, Ms Young's more so, suffered significant defects in terms of amenities. However, if that part of the definition is to be relied upon "does not have the full range of amenities available", more evidence or information would be required to assess whether a given dwelling did in fact come within that part of the definition. Even on the appellants' argument, it is not clear that the subject premises fell within the definitions.
[64] The overall context in which the glossary definition appears, needs to be considered. The various terms and phrases used in the glossary attempt to give meaning, by explaining in different ways how to characterise an "improvised dwelling". Taking the various terms in the glossary in context, I have concluded the definition of an "improvised dwelling" was not intended to include houses with temporary or even significant defects, which may impact temporarily on the available amenities. There may be cases where it is a matter of fact and degree but the overall definition seeks to delineate between genuine dwellings and buildings or structures which are improvised as dwellings.
[65] The Tribunal found on the facts that although there were deficiencies in terms of the amenities, the premises did not fall within the definition of improvised dwelling. Although a misconstruction of the glossary terms could constitute an error of law, my conclusion is the Tribunal did not misconstrue the definitions. In terms of whether the Tribunal erred in law in its application of the definition to the facts before it, such an error would constitute an error of fact, not of law or at least constitute a question of mixed fact and law. It was reasonably open to the Tribunal to determine that on the evidence before it, the premises did not fall within the ordinary meaning of "improvised dwelling".
[66] The definition "improvised dwelling" provides examples for those who need to draw on the definition: a shed, car body, humpy or iron/tin structures. The definition does not extend to structures which are houses, purposely built as dwellings, even with significant defects and even if in need of repair. While the subject houses were in poor condition, they did not meet the description "improvised". There is no reason to criticise the Tribunal's use of the term "amenities one would expect". On my reading that phrase is simply bringing objectivity and reasonableness to the assessment required.
[67] I would not uphold this ground.

[78]

[72] Earlier in the Reasons, after considering some of the authorities, the Tribunal emphasised "The test is a very high test."[74]
[73] The term "habitable" is included in many contexts in the RTA. In s 3(d) of the RTA: "to ensure that tenants are provided with safe and habitable premises under tenancy agreements and enjoy appropriate security of tenure"; s 3(e): "to facilitate landlords receiving a fair rent in return for providing safe and habitable accommodation to tenants"; s 47: " a landlord must not enter into, or offer to enter into, a tenancy agreement unless the premises and ancillary property to which the agreement relates or would relate : (a) are habitable; and(b) meet all health and safety requirements specified under an Act that apply to residential premises or ancillary property"; s 88(c) and 92(c) in relation to termination as a result of flooding, in the event of a threat to health and safety or members of the public or the property, or because "the premises have become uninhabitable". Invariably under the RTA, expression is given to "habitable" separately from health and safety issues, although it is clear the two concepts overlap to a significant degree.
[74] The respondent argued the Tribunal applied the correct test in accordance with the authorities in the sense that "habitable" is essentially concerned with protecting a tenant's safety and health. On appeal, senior counsel for the respondent submitted the types of matters which have been held to render premises not fit for habitation at common law were aimed at ensuring safety and health. The examples given were the infestation of bugs, defective drainage, infection by measles and recent occupation by a person suffering from pulmonary tuberculosis.[75] Further, reference was made to Atkin LJ's observations in Morgan v Liverpool Corporation:[76] "the state of repair of the house that is such that by ordinary use damage may naturally be caused to the occupier, either in respect of personal injury to life or limb or injury to health".
[75] The respondent submitted that Parliament did not intend that "habitable" be given any broader meaning. It was submitted that the presence of s 48 (1)(b) of the RTA to meet all health and safety requirements provided no basis for concluding "habitable" is not confined to safety and health. It was said that clearly there is an overlap between the concepts of "habitable" and "health and safety" and they are not used in contra distinction. Further, that "health and safety requirements" in s 48 refer to requirements "under an Act", consequentially, "habitable" embraces health and safety matters that are not subject to an Act. Section 48 does not, however, say that. Parliament could have used the terms "health and safety" instead of "habitable" if that was the intention. It was submitted the weight of authority clearly favours a narrow approach to the meaning of "habitable"; that is, if by ordinary use, damage may be caused to the occupier either in respect of personal injury to life or limb, or injury to health. Further, it was submitted that "humaneness" and "reasonable comfort" are not separate qualifying criteria.
[76] In my view the respondent's submission construes s 48(1)(a) too narrowly. Certainly it is accepted there is a significant overlap between the concept "habitable" and health and safety; however, the two terms are used in different contexts throughout the RTA. Importantly, "habitable", and more particularly, "safe and habitable", is included under the objectives of the RTA under s 3(d) for the benefit of tenants. It would seem the term "habitable," in the context of the RTA, would be redundant if the meaning is to be associated solely with health and safety.
[77] The Tribunal quoted the 2013 Macquarie Dictionary which defined "habitable" to mean "capable of being inhabited". The appellants included a number of dictionary definitions in written submissions which are instructive:[77] "suitable or good enough to live in" (The Oxford English Dictionary); "providing conditions that are good enough to live in or on" (Cambridge Dictionary); "it is good enough for people to live in" (Collins Dictionary); "capable of being inhabited; suitable for habitation" (Merriam-Webster Dictionary). Both the ordinary and dictionary meanings of "habitable" draw on factors broader than, yet may include elements of health and safety.
[78] Both parties have drawn attention to the oft quoted New South Wales Residential Tenancy Tribunal decision Jex v Struk[78] where the Tribunal found the following as the basic propositions held with respect to habitation:
1. "Fit for habitation" means at least that the premises may be lived in without risk of "personal injury to life or limb or injury to health".

[87]

[87] On appeal, the respondent conceded that s 49(1) could include a door within the phrase "other security devices". The respondent now accepts the Tribunal erred by dismissing Ms Young's claim for a breach of s 49(1). The concession is properly made. As the appellant points out "security device" is not defined in the RTA. Clearly, a door to the premises is the most basic way ensure security. Without a door, a house cannot be secured. Once a door is installed, other features such as locks and bolts or other security devices may be added, but at a fundamental level, a landlord who does not provide a backdoor will be in breach of s 49 of the RTA.
[88] Unlike repairs that fall within s 57 and s 58, redress does not depend on the landlord receiving notice from the tenant. The Tribunal found the absence of the door was a repair under s 57 which required notice. Ms Young was only compensated for the period of six weeks which represents the period from when the respondent received notice. Nominal damages of $100 was awarded, on the basis that the claim under s 57 was considered a mere repair which should have been attended to earlier.
[89] In assessing compensation on the basis of the material that was before the Tribunal and the submissions on appeal, the complete absence of a back door was a fundamental failing by the respondent to provide reasonably secure premises of a ground level house. Ms Young is an elderly woman who was left vulnerable to proven animal intruders and potentially human intruders. She took steps to block off the door, but it is the respondent who was under a duty to provide secure premises. The relevant period the premises was without a door provided by the respondent was 30 June 2010 until March 2016. I do not think it is sufficient to award nominal damages for the distress and disappointment associated with such a fundamental breach. While it is the case there is little direct evidence about the particular vulnerability of the appellant in circumstances where her house had no back door, it is obvious that not having a door will cause distress and disappointment associated with the physical inconvenience of not being able to secure the premises. I have some, but little regard to the replacement door referred to below. There is very little evidence about it and it would appear it was a structure that just blocked off the entry. It did not keep a snake out. By installing a door, Ms Young did attempt to mitigate her loss. The fact some effort was put into an alternative way to secure the premises points to physical inconvenience.
[90] Both parties recognise the principles from Baltic Shipping Co v Dillon[85] apply to residential tenancies. The respondent recognised distress and disappointment arising from physical inconvenience is relevant, but the circumstances here should not be aligned with cases where the contract breached is one whose object is to providing enjoyment and relaxation. Any award made in favour of Ms Young under s 122 of the RTA may compensate for the physical inconvenience caused by the breach of contract or statutory provisions such as s 49(1) of the RTA. While I agree with the respondent that the circumstances here are far removed from those in Baltic Shipping, distress and disappointment arising from physical inconvenience may form part of an award of compensation. Since the hearing of the appeal, counsel have drawn attention to and made further submissions on the recent High Court decision of Moore v Scenic Tours Pty Ltd[86] which confirmed various elements of Baltic Shipping. Counsel for the appellants pointed out that in Moore v Scenic Tours, the Court made reference to compensation arising in respect of "vexation and frustration", "humiliation, indignity...grief, anxiety and distress, not involving a recognised psychological condition" and 'depression of spirit'.[87] The Court also endorsed the following passage by Brennan J in Baltic Shipping:[88]

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