Young v Chief Executive Officer

Young v Chief Executive Officer (Housing) [2023] HCA 31; (2023) 278 CLR 208, applied.

Baltic Shipping Co v Dillon [1993] HCA 4; (1993) 176 CLR 344, Bond v Weeks [1999] 1 Qd R 134, Development Consent Authority v Phelps [2010] NTCA 3; (2010) 27 NTLR 174, Henville v Walker (2001) 206 CLR 459, Herbert v An Assessor (Victims of Crime Assistance Act) & Anor [2022] NTSC 76, Miller v Jennings [1954] HCA 65; (1954) 92 CLR 190, Moore v Scenic Tours Pty Ltd [2020] HCA 17; (2020) 268 CLR 326, Osland v Secretary, Department of Justice [2010] HCA 24; (2010) 241 CLR 320, O'Toole v Charles David Pty Ltd (1990) 171 CLR 232, Progressive Mailing House Pty Ltd v Tabali Pty Ltd [1985] HCA 14; (1985) 157 CLR 17, Tiver Constructions Pty Ltd v Clair [1992] NTSC 86; (1992) 110 FLR 239, Union Steamship Co of Australia Pty Ltd v King [1988] HCA 55; (1988) 166 CLR 1, referred to.

Respondent: N Christrup SC (Solicitor-General for the Northern Territory) with H Baddeley

Young v Chief Executive Officer (Housing) [2025] NTCA 5

MATTHEW WAYNE YOUNG IN HIS CAPACITY AS ADMINISTRATOR OF THE ESTATE OF KWEMENTYAYE YOUNG (DECEASED)

• [1] This is an appeal from a decision of the Supreme Court delivered on 8 September 2020[1], allowing in part an appeal from a determination by the Northern Territory Civil and Administrative Tribunal (the Tribunal) delivered on 27 February 2019 concerning the entitlement to compensation pursuant to s 122(1) of the Residential Tenancies Act 1999 (NT) for breaches of various obligations alleged to have been committed in the course of two residential tenancies[2].
• [2] This aspect of the appeal concerns the assertions that the Supreme Court erred in its approach to the calculation of compensation under s 122(1) of the Residential Tenancies Act and, or in the alternative, that the amount of compensation awarded was manifestly inadequate. These proceedings have a long and convoluted procedural history. A proper understanding of the issues raised by this appeal requires the traversal of that history.

• [3] At the material times, Kwementyaye Young (the appellant) was the tenant of residential premises in Santa Teresa, an Aboriginal community located 80 kilometres south-east of Alice Springs. The Chief Executive Officer (Housing) (the CEO) is a corporation sole established by s 6 of the Housing Act 1982 (NT) and was the landlord within the meaning of the Residential Tenancies Act.
• [4] On 5 February 2016, the appellant and another tenant filed Initiating Applications in the Tribunal seeking orders under s 63 of the Residential Tenancies Act requiring the CEO to effect emergency repairs to the premises. Subsequently, the relief sought was amended to include a claim for compensation under s 122(1) of the Residential Tenancies Act for a breach of the landlord's obligation to repair the premises under s 57 of the Residential Tenancies Act; or, in the alternative, for a breach of the landlord's obligation to ensure that the premises were 'habitable' under s 48 of the Residential Tenancies Act; or, in respect of some items, for a breach of the landlord's obligation to ensure the premises were reasonably secure under s 49 of the Residential Tenancies Act.
• [5] The CEO counterclaimed against the appellant for compensation under s 122(1) of the Residential Tenancies Act for unpaid rent under a written tenancy agreement made on 14 December 2011; and for compensation under that same provision for loss suffered as a result of the appellant's failure to properly maintain the premises in breach of the terms of the written tenancy agreement and the term incorporated by s 51 of the Residential Tenancies Act. The CEO withdrew the claim against the appellant for unpaid rent during the course of the hearing of the matter before the Tribunal.
• [6] So far as is relevant for present purposes, the Tribunal found:

(a) in order to establish a breach of the CEO's obligation to ensure that the premises were 'habitable' under s 48(1) of the Residential Tenancies Act, the state of the premises must have been such that there was 'a threat to the tenant's safety, going to both structural and health issues';

(b) the obligation was on the tenant to establish that the state of the premises was such that a threat to the tenant's safety would naturally occur from the ordinary use of the premises;[3]

(c) a bent perimeter fence surrounding the appellant's premises did not constitute a breach of the duties incorporated by ss 48(1), 49(1) or 57(1) of the Residential Tenancies Act;[4]

(d) there was no evidence that a leak under the kitchen sink at the appellant's premises was in breach of the CEO's obligation to ensure that the premises were 'habitable' under s 48(1) of the Residential Tenancies Act, and the leak was repaired in compliance with the obligation under s 57(1) of the Residential Tenancies Act;[5]

(e) there was no evidence that a leaking shower head or drain at the appellant's premises was in breach of the CEO's obligation to ensure that the premises were 'habitable' under s 48(1) of the Residential Tenancies Act, or in breach of the obligation to repair under s 57(1) of the Residential Tenancies Act;[6]

(f) the failure to equip the appellant's premises with an air conditioner was, in the months of January, November and December each year, in breach of the CEO's obligation to ensure that the premises were 'habitable' under s 48(1) of the Residential Tenancies Act during the period from 13 November 2011 up until 31 January 2016 when an air conditioner was installed;[7]

(g) the manner in which the air conditioner was subsequently installed at the appellant's premises was not in breach of the CEO's obligation to ensure that the premises were 'habitable' under s 48(1) of the Residential Tenancies Act or the obligation to repair under s 57(1) of the Residential Tenancies Act;[8]

(h) as a result of the CEO's breach of s 48(1) of the Residential Tenancies Act in failing to install an air conditioner during the relevant period, the appellant was entitled to compensation for loss and damage in the amount of $4735.80 (being a refund of the rent paid for the relevant months during the period between 13 November 2011 and 5 October 2016), and $4000 for the distress arising from the physical inconvenience caused by the breach;[9]

(i) the CEO's failure to replace a missing back door on the appellant's premises for over six weeks was in breach of the duty to repair under s 57(1) of the Residential Tenancies Act, but the absence of a back door did not constitute a breach of the CEO's obligation to ensure that the premises were 'habitable' under s 48(1) of the Residential Tenancies Act or to take reasonable steps to ensure the premises were reasonably secure under s 49(1) of the Residential Tenancies Act;[10]

(j) there was no evidence that any problem with the toilet at the appellant's premises was in breach of the CEO's obligation to ensure that the premises were 'habitable' under s 48(1) of the Residential Tenancies Act, but the CEO failed to act with reasonable diligence to have the toilet repaired during the period from 22 January to 8 April 2016 in breach of the obligation under s 57(1) of the Residential Tenancies Act;[11]

(k) the CEO failed to act with reasonable diligence to have the stove at the appellant's premises repaired during the period from November 2015 to mid-April 2016, in breach of the obligation under s 57(1) of the Residential Tenancies Act;[12] and

(l) as a result of the CEO's breaches of s 57(1) of the Residential Tenancies Act in failing to replace the missing back door and to repair the stove in a timely fashion, the appellant was entitled to 'nominal damages' in the amounts of $100 and $200 respectively in the absence of evidence as to specific loss and damage.[13]

• [7] The appellant brought an appeal to the Supreme Court asserting that the Tribunal made various errors of law in its determination. So far as is relevant for present purposes, the Supreme Court found:

(a) the Tribunal erred in construing the term 'habitable' in s 48(1) of the Residential Tenancies Act as limited to matters bearing on a tenant's health and safety, and the appellant's claim under s 48(1) of the Residential Tenancies Act in respect of the defects was remitted to the Tribunal for determination on the basis that the assessment of habitability includes 'an overall assessment of the humaneness, suitability and reasonable comfort of the premises ... judged against contemporary standards';[14] and

(b) the Tribunal erred in finding that the CEO's failure to furnish the appellant's premises with a back door did not constitute a breach of the CEO's obligation to take reasonable steps to ensure the premises were reasonably secure under s 49(1) of the Residential Tenancies Act; and

(c) the appellant was therefore entitled to compensation under s 122 of the Residential Tenancies Act in the amount of $10,200 ($150 per month for 68 months) for distress and disappointment caused by the failure to provide secure premises.[15]

• [8] The relevant effect of the Supreme Court's determination in relation to habitability was broadly as follows. The appellant claimed her house was not 'habitable' within the meaning of s 48 of the Residential Tenancies Act because of any, or a combination, of a number of defects. They were: (a) the showerhead and drain leaking for 2117 days; (b) the toilet having a poor flush mechanism which did not clear waste for 534 days; (c) a leak under the kitchen sink for 477 days; (d) the absence of a back door for 2090 days; (e) the perimeter fence being bent to the ground for 2328 days; (f) the lights and fans being removed and the circuit breaker turned off for 58 days; (g) wires being left exposed and dangling from the ceiling the 58 days; and (h) being left without an air conditioner for 2121 days.[16]
• [9] The Tribunal had determined that the only defect in breach of the CEO's obligation to ensure that the premises were 'habitable' under s 48(1) of the Residential Tenancies Act was the absence of an air conditioner for a period of 540 days.[17] Having found that the Tribunal had erred in relation to the meaning of the term 'habitable' in s 48 of the Residential Tenancies Act, the Supreme Court allowed the appeal in that respect and remitted the matter back to the Tribunal 'for reconsideration of the claim under s 48 [of the Residential Tenancies Act]'. What that means is that it remains for the Tribunal to determine whether each of the defects asserted by the appellant was of a character which rendered the premises not 'habitable' in the relevant sense and, if so, to determine the amount of compensation payable in respect of that breach. That includes the determination made in relation to the absence of air conditioning, to the extent that it was based on the erroneous premise that the assessment of habitability was limited to matters bearing on a tenant's health and safety.
• [10] The Tribunal had awarded the appellant compensation for the absence of the back door only for breach of the landlord's obligation to repair under s 57(1) of the Residential Tenancies Act, and then only in the nominal amount of $100 to reflect the six-week period which ran from when the CEO received notice of the defect to when it was rectified. The Tribunal had rejected the appellant's alternative claim that the absence of a back door for 2090 days constituted a breach of the term incorporated by s 49(1) of the Residential Tenancies Act that 'the landlord will take reasonable steps to provide and maintain the locks and other security devices that are necessary to ensure the premises and ancillary property are reasonably secure'. During the course of the appeal before the Supreme Court, the CEO conceded that in doing so the Tribunal was in error. In terms which are extracted and discussed further below in the context of the proceedings before the Court of Appeal, the Supreme Court awarded the appellant compensation for her 'reduced enjoyment of the premises and subsequent distress and disappointment due to the failure to provide a premises which was secure'.[18]

Previous proceedings before the Court of Appeal

• [11] The CEO brought an appeal from the decision of the Supreme Court to the Court of Appeal on various grounds which included, so far as is relevant for present purposes:

(a) that the Supreme Court erred in construing s 48(1)(a) of the Residential Tenancies Act by holding that the term 'habitable' requires an overall assessment of humaneness, suitability and reasonable comfort of the premises judged against contemporary standards; and

(b) that the Supreme Court erred in finding that the tenancy agreement between the CEO and the appellant was an agreement whose object was to provide enjoyment, relaxation or freedom from molestation and was therefore governed by the second limb of the principle in Baltic Shipping[19] concerning damages for distress and disappointment for breach of contract.

• [12] After reviewing the jurisprudential history of the concept of habitability in tenancy law, the Court of Appeal concluded that the Tribunal had fallen into error in its approach to the construction of the term 'habitable' by limiting the relevant consideration to matters bearing on a tenant's health and safety, and that the Supreme Court was correct in ordering that the matter should be remitted to the Tribunal for reconsideration of the claims for compensation made on that ground.
• [13] However, the Court of Appeal also found that the statement by the Supreme Court of the test to be applied in determining habitability[20] should not be adopted in its entirety in that reconsideration. In particular, the Court of Appeal stated that a finding that premises are not fit for habitation should not be made lightly, and the criteria of 'humaneness' and 'suitability' suggested by the Supreme Court did not assist in that determination. Rather, the relevant test of habitability involves considerations of comfort, health and safety to be judged against a standard of reasonableness having regard to the age, character and locality of the residential premises and the effect of the defect on the state or condition of the premises as a whole.[21] The Court of Appeal dismissed that ground of appeal subject to those observations.[22]
• [14] In the other presently relevant ground of appeal, the CEO asserted that the Supreme Court erred in law in finding that the tenancy agreement between the CEO and the appellant was an agreement whose object was to provide enjoyment, relaxation or freedom from molestation, and in the consequential finding that an award of compensation for the breach of a term incorporated by the Residential Tenancies Act was therefore governed by 'the second limb of the principle in Baltic Shipping' concerning damages for distress and disappointment for breach of contract. The Supreme Court's reasoning and conclusions in that respect were as follows (citations omitted):

Both parties recognise the principles from Baltic Shipping Co v Dillon 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 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'. The Court also endorsed the following passage by Brennan J in Baltic Shipping:

"[I]f peaceful and comfortable accommodation is promised ... and the accommodation tendered does not answer the description, there is a breach which directly causes the loss of the promised peacefulness and comfort and damages are recoverable accordingly."

The tenancy agreement here is very different to a contract offering holiday makers enjoyment and relaxation. The statutory guarantee underpinning the tenancy agreement is fundamental and promised secure premises. The principles and observations drawn from both Baltic Shipping and Moore v Scenic Tours Pty Ltd must be heavily calibrated appropriately to the circumstances of Ms Young's reduced enjoyment of the premises and subsequent distress and disappointment due to the failure to provide a premises which was secure. Although I am prepared to accept the application of those principles, heavily calibrated to include frustration and distress, compensation here cannot be based on a proportion of the damages in Moore v Scenic Tours Pty Ltd as was suggested by the appellants.

I would assess compensation under s 122 of the RTA in the sum of $10,200. This is based on $150 per month for 68 months.[23]

• [15] The parties were in disagreement as to whether, by those reasons, the Supreme Court did in fact make an award of compensation in the application of 'the second limb of the principle in Baltic Shipping'. Counsel for the appellant contended that in saying '[a]ny award made in favour of [the appellant] 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', the Supreme Court determined to limit the award of compensation to distress and disappointment contingent on physical inconvenience. The Court of Appeal found that the more likely import of those reasons, as near as could be determined, was that the Supreme Court had awarded compensation for the 'reduced enjoyment of the premises and subsequent distress and disappointment due to the failure to provide a premises which was secure', albeit on a 'heavily calibrated' basis. That was best construed as a reference to the second limb of damages in Baltic Shipping, rather than an award of damages for distress and disappointment arising exclusively from physical inconvenience.[24]
• [16] The Court of Appeal then went on to consider whether the power to award compensation under s 122 of the Residential Tenancies Act was subject to the same strictures which govern the award of damages under the law of contract, and whether the power to award compensation under that provision for the breach of a term of a tenancy agreement incorporated by the statute extended to compensation for distress and disappointment for a failure to provide quiet enjoyment and/or secure premises. After reviewing a range of decisions dealing with that general issue, the Court of Appeal determined that the Supreme Court had fallen into error in finding that compensation could be awarded consistently with the second limb of the principle in Baltic Shipping concerning damages for distress and disappointment for breach of contract. This ground of appeal was allowed on that basis.[25]

• [17] The appellant then brought an appeal to the High Court from the Court of Appeal's determination. The issue for determination on that appeal was described in joint reasons by three members of the five-member bench to be 'whether [the Tribunal] is empowered by s 122(1) of [the Residential Tenancies Act] to order that a landlord compensate a tenant for distress or disappointment suffered by the tenant as a normal healthy reaction to a failure on the part of the landlord to comply with a statutorily imposed term of a residential tenancy agreement that the landlord take reasonable steps to provide and maintain security devices necessary to ensure that residential premises are reasonably secure'.[26] While that formulation of the dispositive question was directed specifically to the Supreme Court's finding in relation to the absence of the back door in breach of the term incorporated by s 49 of the Residential Tenancies Act, it has a more general application to the award of compensation under s 122(1) of the Residential Tenancies Act for the breach of a term of a tenancy agreement.
• [18] In answering that question, the three-member joint reasons state that the Court of Appeal was correct to find that the language of s 122(1) of the Residential Tenancies Act requires an applicant to establish a causal connection between breach and compensable loss and damage, which might require a consideration of issues falling under the general rubric of remoteness; and that the Residential Tenancies Act provided for the application of the general law of contract by making certain obligations terms of a tenancy agreement and thereby enforceable contractual obligations.
• [19] However, the joint reasons found that the Court of Appeal had erred in finding that the measure of compensation capable of being ordered under s 122 of the Residential Tenancies Act for breach of a term of the tenancy agreement was confined by reference to the measure of damages available in a common law action for breach of contract. Rather, s 122 of the Residential Tenancies Act provides for the award of compensation as an alternative to common law damages. The task of the Tribunal in determining statutory compensation 'is to arrive at a measure of compensation which conforms to the purposes of the Act and to the justice and equity of the case, having regard to the nature and purpose of the particular obligation with which there has been failure to comply'.[27] The joint reasons concluded:

The evident purpose of the obligation specified by s 49(1) of the Act to be a term of a tenancy agreement, with which the CEO as landlord failed to comply, is ensuring that premises occupied by a tenant for the purpose of residency are reasonably secure. For a tenant to be secure in the occupation of premises is for the tenant to reside there free from threat of harm or unwanted access. The feeling of insecurity which Ms Young experienced because of the landlord's failure to provide the residential premises with a back door was the obverse of the security which it was the purpose of that obligation to secure. The connection between the landlord's breach and the distress and disappointment suffered by Ms Young readily satisfied the causal connection required by the word "because" in s 122(1).[28]

• [20] On that formulation, the question whether a particular form or type of statutory compensation is available in relation to a breach is essentially one of statutory construction, and in this case is not answered by whether damages for distress and disappointment would have been available in an action for breach of contract at common law.
• [21] The other two members of the High Court took a different approach to the issue, which was also described and delivered in joint reasons. That approach proceeded from the premise that in the creation of terms the Residential Tenancies Act presupposed the operation of general contract law rules, and even if it did not, in determining the payment of compensation, including limits to the recoverability of compensation, the Tribunal would be informed by 'the common law rules that have been developed incrementally over centuries'.[29] The joint reasons then stated, by way of summary of the analysis which followed:

... the common law rules concerning limitation of recovery of compensation or damages for breach of contract preclude recovery of damages for disappointment and distress where that disappointment and distress is not consequential upon physical injury or physical inconvenience. That is, damages for disappointment and distress are not available at common law unless an object of the contract, or the specific term that is breached, was concerned with the promisee's state of mind. The relevant contract term breached in this case, with its focus upon the safety and security of the premises, had an object which included providing the tenant with security and peace of mind.[30]

• [22] In reaching that ultimate conclusion, the two-member joint reasons drew a distinction between the assessment of compensation under s 122(1)(a) of the Residential Tenancies Act for a failure to comply with a term of the tenancy agreement; the assessment of compensation under s 122(1)(a) for a failure to comply with an obligation in the nature of a statutory civil duty or statutory offence; and the assessment of compensation under s 122(1)(b) for recovery of an overpayment. The legislation manifests an intention that those different types of claims be treated differently. The first type of claim requires no analogy with the general law because it is a breach of contract attracting the operation of the common law rules. The second type of claim involves a remedy for breach of a statutory obligation, the formulation of which will not necessarily be assisted by an attempt to draw an analogy with any particular form of claim under the general law. The third type of claim involves the remedy of restitution in a liquidated sum of a quite different nature from the remedy of damages.[31]
• [23] Although both sets of joint reasons determined that the appeal should be allowed, and there is no 'majority' or 'dissent' in the result, the respective reasons for that outcome are markedly different. As the CEO submits, the ratio decidendi is the legal rule expressed or necessarily implied by reasons for judgment to which a majority of the participating judges assent as a necessary step in reaching that conclusion.[32] In accordance with that formulation, the ratio of the decision is as expressed in the three-member joint reasons to the effect that the availability of compensation under s 122 of the Residential Tenancies Act is not confined by the common law principles of remoteness addressed in Baltic Shipping, or common law principles generally. It is a matter of statutory interpretation having regard to the nature and purpose of the obligation with which there has been a failure to comply, and the operation of the considerations and exclusions stipulated in ss 120 and 122 of the Residential Tenancies Act.
• [24] The three-member reasons concluded that as a matter of statutory construction the evident purpose of the obligation to ensure the premises are reasonably secure is to enable the tenant to reside there free from the threat of harm or unwanted access. In the particular circumstances of this case, any resultant distress or disappointment arising from feelings of insecurity which the appellant suffered as a result of that failure would be compensable, subject to the operation of the relevant statutory considerations and exclusions. As with the dispositive question, the analysis underlying that ratio has the potential application beyond the obligation in s 49 of the Residential Tenancies Act to all terms and obligations incorporated into a tenancy agreement.

• [25] The appellant's appeal against the decision of the Supreme Court has effectively been held in abeyance pending the determination of the CEO's appeal on the grounds that the Supreme Court had erred in the construction of the term 'habitable' and in finding that the character of the relevant tenancy agreement attracted the second limb of the principle in Baltic Shipping concerning damages for distress and disappointment for breach of contract. The first issue has now been resolved by the decision of the Court of Appeal and the second issue has now been resolved by the decision of the High Court.
• [26] As part of the High Court's determination, Order 4 made by the Court of Appeal was set aside. That order (or declaration) was that the Supreme Court erred in finding that the tenancy agreement was one for which damages could be recovered for disappointment and distress independently of any physical inconvenience. The effect of the High Court's order in that respect was to recognise, in accordance with the ratio of the decision, that the recoverability of compensation for disappointment and distress following a breach of s 49(1) of the Residential Tenancies Act is not governed by common law principles of contract, and in particular by the Baltic Shipping formulation.
• [27] In addition, orders were made by consent at the commencement of the hearing in the High Court to set aside Order 5 made by the Court of Appeal, which had mistakenly set aside Order 5 made by the Supreme Court assessing compensation for the claim under s 49(1) of the Residential Tenancies Act in the sum of $10,200. The purpose and effect of the High Court's order in that respect was to leave extant the appellant's pending appeal in the Court of Appeal concerning the quantification of damages for that breach, and to stay the operation of the relevant Supreme Court order pending determination of the appeal.
• [28] Order 5 made by the Supreme Court remains in place in the following terms:

The decision of the Tribunal to dismiss [the appellant's] claim under s 49 of the Residential Tenancies Act is set aside. The [CEO] is to pay compensation under s 122 of the Residential Tenancies Act to [the appellant] in the sum of $10,200.

• [29] The appellant's appeal is expressed to be brought from Order 5 and paragraphs [90], [91] and [93] of the reasons of the Supreme Court which have been extracted above. The grounds of appeal are:
  1. The learned primary judge erred by characterising the tenancy agreement between the parties not as one 'whose object is to provide enjoyment and relaxation', and consequently only compensated the Appellant for 'physical inconvenience' arising as a result of the protracted tenancy agreement breach by the landlord.
  2. The learned primary judge erred by 'heavily calibrat[ing] the principles and observations drawn from both Baltic Shipping [Co v Dillon [1993] HCA 4; 176 CLR 344] and Moore v Scenic Tours Pty Ltd' [2020] HCA 17 when calculating compensation under s 122 of the Residential Tenancies Act 1999 (NT).
  3. The learned primary judge erred by calculating compensation under s 122 of the Residential Tenancies Act 1999 (NT) other than on the basis that was fair and reasonable for 'a fundamental failing by the landlord to provide reasonably secure premises of a ground level house [of] an elderly woman who was left vulnerable to proven animal intruders and potentially human intruders' for 68 months. That is, the award of $4.93 per day of that breach was manifestly inadequate.
• [30] The appellant does not press ground 1 on the basis that, as has already been described above, the Court of Appeal found that the Supreme Court had in fact awarded compensation for distress and disappointment other than exclusively on the basis of physical inconvenience.[33] No challenge was brought against that finding in the appeal to the High Court and it remains undisturbed.
• [31] The parties are at odds in relation to the viability of ground 2. The appellant says that it remains for determination, and that it should be allowed and the decision set aside on the basis that the principles from Baltic Shipping should not be in any way modified in the assessment of compensation under s 122 of the Residential Tenancies Act. Conversely, the CEO says that on the basis of the High Court's determination on appeal, the common law principles expressed in Baltic Shipping do not apply to either the availability or the assessment of compensation under s 122 of the Residential Tenancies Act, whether modified and 'calibrated' or not. Accordingly, the ground of appeal now proceeds from a flawed premise and should be dismissed.
• [32] The appellant resists that submission on the basis that the common law principle should be taken to have application because the members of the High Court were unanimous as to the result; the three-member joint reasons did not expressly disavow the reasoning in the two-member joint reasons; and two justices may constitute a Full Court of the High Court[34]. That argument must be rejected. The relevant claim was exclusively for statutory compensation under s 122 of the Residential Tenancies Act. It was not, and is not, an action for damages at common law for breach of contract, and nor would the Tribunal have jurisdiction to entertain such a claim. For the reasons already described, the ratio of the High Court's decision is that the availability of compensation under s 122 of the Residential Tenancies Act is a matter of statutory interpretation having regard to the nature and purpose of the obligation with which there has been a failure to comply, and does not import the common law principles of remoteness addressed in Baltic Shipping.
• [33] Although one consequence of that conclusion was that the second ground of appeal before the High Court concerning the content and application of those common law principles did not require consideration and determination[35], it is plain from the three-member joint reasons that common law principles of recovery do not govern the award of statutory compensation[36]. That is because the premise underlying the three-member determination is that the availability of compensation under s 122 of the Residential Tenancies Act for breach of a term of a tenancy agreement is not confined by reference to the type or measure of damages that could be ordered by a court in a common law action for breach of contract[37], subject to the express requirement in s 120 that the applicant for compensation must mitigate his or her loss or damage in the same way as if the applicant were a plaintiff in a common law action for damages for breach of contract[38].
• [34] That premise is not displaced by the fact that the principles of common law may provide 'useful guidance' and 'valuable insight' for the assessment of statutory compensation by analogy with causes of action available at general law.[39] As the CEO submits, the principles from Baltic Shipping concern the availability of damages for distress and disappointment in a common law claim for damages for breach of contract, and the Supreme Court was applying those principles to the determination of whether statutory compensation was available.
• [35] For that reason, ground 2 should be dismissed. However, the dismissal of this ground is irrelevant in a practical sense because the appellant's contentions and related interests under ground 2 are largely subsumed by the contention in ground 3 that the award did not compensate 'a fundamental failing by the landlord to provide reasonably secure premises of a ground level house [of] an elderly woman who was left vulnerable to proven animal intruders and potentially human intruders'[40], and was therefore manifestly inadequate. The assessment of compensation made by the Supreme Court must necessarily be set aside, but not on the ground of manifest inadequacy. In an appeal against a discretionary determination of this type, where the appellate court finds that some specific error has been made in the exercise of the discretion, which would include a finding that the court below acted on a wrong principle of law[41], the decision must be set aside.[42]
• [36] In the application of the ratio of the High Court's determination on appeal, the manifest error on the part of the Supreme Court was to proceed on the basis that the availability of compensation was to be determined in accordance with the common law principles of recoverability expressed in Baltic Shipping. That obviates any determination of whether the assessment of compensation was so unreasonable or plainly unjust it may be inferred that the exercise of the discretion miscarried in the absence of discernible error. That is because the Supreme Court's assessment of compensation was based at the threshold on the application of common law principles now held to be inapplicable.
• [37] That leaves the question whether this Court of Appeal should undertake the task of assessing compensation for the breach and substituting its own determination for that made by the Supreme Court, or whether the matter should be remitted for determination to either the Supreme Court or the Tribunal. The appellant says that task should be undertaken by the Court of Appeal. The principal bases on which that submission is put are that the assessment of compensation by this Court would forestall further delay in the matter and authoritatively determine both the principles to be applied having regard to the High Court's decision and the amount of compensation properly awarded for these types of breach.
• [38] The appellant's further submission that a statement made in the two-member joint reasons in the High Court compels the Court of Appeal to conduct the assessment of compensation should be rejected. What the joint reasons say in that respect is that 'orders concerning compensation, and any substitute amount, should be made in the pending appeal to the Court of Appeal' (emphasis by underlining added).[43] That statement was made in response to the appellant's application for orders that the High Court should quash the decision of the Tribunal, quash the orders for compensation made by the Tribunal and remit the matter back to the Tribunal for determination according to law. That statement was only to say that the Court of Appeal should determine and make the necessary orders concerning matters of compensation, including the forum in which compensation is properly assessed.
• [39] The CEO submits that the assessment of compensation should be remitted to the Tribunal because it is an evaluative matter for which further findings of fact may have to be made. In addition, the appellant's claims in relation to habitability under s 48 of the Residential Tenancies Act have already been remitted to the Tribunal and remain to be determined. That determination will include an assessment of compensation for any of the defects which are found to breach the landlord's obligation to ensure that the premises are 'habitable'. We accept that the assessment of compensation for the breach of the obligation under s 49 of the Residential Tenancies Act is properly remitted to the Tribunal for determination for the following reasons.
• [40] First, in determining an appeal confined to a question of law, as this appeal is[44], an appellate court may substitute its own decision: (a) where only one conclusion is open on the correct application of that law to the facts found by the tribunal at first instance; or (b) where any factual matter in dispute can be conveniently determined upon uncontested evidence or primary facts already found by the tribunal at first instance.[45] In this matter the findings of fact made by the Tribunal concerning the missing back door were directed to the assessment of compensation for the breach of the obligation to repair under s 57 of the Residential Tenancies Act, which is concerned with the period between the notification of the defect and its rectification. The appellant has also indicated an intention to adduce further evidence. Even were that not so, the issues which remain outstanding are not conveniently determined by the Court of Appeal, at least in the first instance.
• [41] Second, where the outstanding issues involve an evaluative judgement the matter should ordinarily be remitted to the tribunal at first instance.[46] The assessment of compensation for a breach of the obligation imposed under s 49 of the Residential Tenancies Act is an evaluative matter which requires the Tribunal to arrive at a measure of compensation having regard to the nature and purpose of the particular obligation in question. That exercise is discretionary and conceivably admits of more than one conclusion. The decision of the High Court on appeal is in no way determinative of the amount of compensation properly awarded, and that matter is best left in the first instance to the body selected by the legislature to determine applications for compensation under s 122 of the Residential Tenancies Act.
• [42] Third, so far as considerations of delay, inconvenience and coherence are concerned, there remain a number of claims which have already been remitted to the Tribunal and require determination by way of further hearing in any event. It is necessary for the Tribunal, in the application of the 'habitability' formulation from the earlier decision of the Court of Appeal, to determine the appellant's claims for compensation under s 48 of the Residential Tenancies Act in relation to (a) the showerhead and drain; (b) the toilet flush mechanism; (c) the leak under the kitchen sink; (d) the back door; (e) the perimeter fence; (f) the lights and fans; and (g) the exposed wires. Depending on how the matter is run, the proceedings already on remittal might also require a revisitation of the Tribunal's initial assessment that the failure to install an air conditioner constituted a breach of the CEO's obligation to ensure that the premises were 'habitable' under s 48(1) of the Residential Tenancies Act only during the months of January, November and December, rather than throughout the period from 13 November 2011 up until 31 January 2016.
• [43] Any determination of compensation which might be made as part of that hearing on remittal will necessarily involve the process of statutory construction described in the three-member reasons of the High Court on appeal, including whether the appellant is entitled to compensation for distress and/or disappointment for any breach of the habitability obligation in s 48 of the Residential Tenancies Act.
• [44] It must also be recognised that the appellant's claim in relation to the absence of the back door was brought on the bases that it constituted a breach of the obligations under ss 48(1), 49(1) and 57(1) of the Residential Tenancies Act. The claim under s 48(1) remains to be determined by operation of the existing order for remittal made by the Supreme Court. The claim under s 49(1) remains to be determined in accordance with the decision of the High Court on appeal. The Tribunal has already awarded the appellant compensation for the claim under s 57(1) for the period which ran from notice of the defect to when it was rectified.
• [45] The award of compensation under s 57(1) remains on foot and might require reconciliation with the determinations which are ultimately made in relation to the claims under ss 48(1) and 49(1). In addition, there is the potential for overlap between any awards of compensation which might be made under ss 48(1) and 49(1), and between any awards of compensation which might be made for the different defects said to breach the obligation to ensure the premises were 'habitable'. Any adjustments to achieve that reconciliation and accommodate those overlaps are clearly best made by the one decision-maker in the first instance.
• [46] These are all matters best determined in a single process of assessment conducted by the Tribunal. For that reason, Order 5 made by the Supreme Court ordering the CEO to pay compensation to the appellant for the breach of the obligation under s 49 of the Residential Tenancies Act in the sum of $10,200 should be set aside, and the matter remitted to the Tribunal for determination.

• [47] The orders are:
  1. That part of Order 5 made by the Supreme Court on 8 September 2020 that '[t]he respondent is to pay compensation under s 122 of the Residential Tenancies Act to Ms Young in the sum of $10,200. Payment is to be made within 28 days from today' is set aside.
  2. The assessment of compensation for the breach of the obligation under s 49 of the Residential Tenancies Act is remitted to the Tribunal for determination.
• [48] We will hear the parties in relation to costs if need be.

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

[2] Various Applicants from Santa Teresa v Chief Executive Officer (Housing) [2019] NTCAT 7.

[3] Various Applicants from Santa Teresa v Chief Executive Officer (Housing) [2019] NTCAT 7, [115]-[120], citing De Soleil v Palhide Pty Ltd [2010] NSWCTTT 464.

[4] Various Applicants from Santa Teresa v Chief Executive Officer (Housing) [2019] NTCAT 7, [167]-[172].

[5] Various Applicants from Santa Teresa v Chief Executive Officer (Housing) [2019] NTCAT 7, [186]-[188].

[6] Various Applicants from Santa Teresa v Chief Executive Officer (Housing) [2019] NTCAT 7, [189]-[191].

[7] Various Applicants from Santa Teresa v Chief Executive Officer (Housing) [2019] NTCAT 7, [173]-[182].

[8] Various Applicants from Santa Teresa v Chief Executive Officer (Housing) [2019] NTCAT 7, [183]-[185].

[9] Various Applicants from Santa Teresa v Chief Executive Officer (Housing) [2019] NTCAT 7, [284.2].

[10] Various Applicants from Santa Teresa v Chief Executive Officer (Housing) [2019] NTCAT 7, [160]-[166].

[11] Various Applicants from Santa Teresa v Chief Executive Officer (Housing) [2019] NTCAT 7, [192]-[196].

[12] Various Applicants from Santa Teresa v Chief Executive Officer (Housing) [2019] NTCAT 7, [240]-[243].

[13] Various Applicants from Santa Teresa v Chief Executive Officer (Housing) [2019] NTCAT 7, [287]-[289]. It is unclear from the Tribunal's reasons why an award of nominal damages was not also made in respect of the faulty toilet.

[14] Young & Conway v Chief Executive Officer, Housing [2020] NTSC 59, [68]-[81].

[15] Young & Conway v Chief Executive Officer, Housing [2020] NTSC 59, [82]-[93]. The award of damages was said by the Judge at intermediate level to have been made in accordance with '[t]he principles and observations drawn from both Baltic Shipping [Co v Dillon [1993] HCA 4; (1993) 176 CLR 344] and Moore v Scenic Tours Pty Ltd [[2020] HCA 17; [2020] HCA 17; (2020) 268 CLR 326] ... heavily calibrated appropriately to the circumstances of Young's reduced enjoyment of the premises'.

[16] Young & Conway v Chief Executive Officer, Housing [2020] NTSC 59, [70].

[17] As described above, the Tribunal awarded the appellant compensation for loss and damage in the amount of $4735.80 (being a refund of the pro rata rent paid for the months of January, November and December each year in the period from 13 November 2011 to 5 October 2016), and $4000 for the distress arising from the physical inconvenience caused by the breach: see Various Applicants from Santa Teresa v Chief Executive Officer (Housing) [2019] NTCAT 7, [284.2].

[18] Young & Conway v Chief Executive Officer, Housing [2020] NTSC 59, [91].

[19] Baltic Shipping Co v Dillon [1993] HCA 4; (1993) 176 CLR 344.

[20] Appearing at Young & Conway v Chief Executive Officer, Housing [2020] NTSC 59, [80].

[21] See, for example, Bond v Weeks [1999] 1 Qd R 134, 138.

[22] Chief Executive Officer (Housing) v Young & Anor [2022] NTCA 1, [30]-[51].

[23] Young & Conway v Chief Executive Officer, Housing [2020] NTSC 59, [90]-[91], [93].

[24] Chief Executive Officer (Housing) v Young & Anor [2022] NTCA 1, [52]-[53].

[25] Chief Executive Officer (Housing) v Young & Anor [2022] NTCA 1, [54]-[69].

[26] Young v Chief Executive Officer (Housing) [2023] HCA 31; (2023) 278 CLR 208, [1].

[27] Young v Chief Executive Officer (Housing) [2023] HCA 31; (2023) 278 CLR 208, [20]-[25].

[28] Young v Chief Executive Officer (Housing) [2023] HCA 31; (2023) 278 CLR 208, [29].

[29] Young v Chief Executive Officer (Housing) [2023] HCA 31; (2023) 278 CLR 208, [35].

[30] Young v Chief Executive Officer (Housing) [2023] HCA 31; (2023) 278 CLR 208, [36].

[31] Young v Chief Executive Officer (Housing) [2023] HCA 31; (2023) 278 CLR 208, [54]-[57].

[32] Citing O'Toole v Charles David Pty Ltd (1990) 171 CLR 232, 267.

[33] Chief Executive Officer (Housing) v Young & Anor [2022] NTCA 1, [53].

[34] Judiciary Act 1903 (Cth), s 29.

[35] Young v Chief Executive Officer (Housing) [2023] HCA 31; (2023) 278 CLR 208, [11], [30].

[36] The reference to the application of common law principles at [27] of the Reasons is to the common law principles of contractual interpretation to determine the nature and purpose of a particular obligation

[37] Young v Chief Executive Officer (Housing) [2023] HCA 31; (2023) 278 CLR 208, [23].

[38] Young v Chief Executive Officer (Housing) [2023] HCA 31; (2023) 278 CLR 208, [28].

[39] See, for example, Henville v Walker (2001) 206 CLR 459, 470. See also Progressive Mailing House Pty Ltd v Tabali Pty Ltd [1985] HCA 14; (1985) 157 CLR 17, 29, 40-41, 53 in relation to the application of the principles of contract law to contractual leases, although that decision does not have anything to say about the assessment of statutory compensation. In its relevant aspect, Union Steamship Co of Australia Pty Ltd v King [1988] HCA 55; (1988) 166 CLR 1, 15-16 was concerned with a provision in which the word 'compensation' embraced both common law damages and statutory compensation. That is clearly not the case here.

[40] This is the manner in which the breach was characterised by the Supreme Court in Young & Conway v Chief Executive Officer, Housing [2020] NTSC 59, [89].

[41] See Miller v Jennings [1954] HCA 65; (1954) 92 CLR 190, 194-195.

[42] That is so unless the appellate court determines to conduct the assessment itself, where the statutory regime permits that process, and in the exercise of that discretion determines that no different result should ensue.

[43] Young v Chief Executive Officer (Housing) [2023] HCA 31; (2023) 278 CLR 208, [78].

[44] Northern Territory Civil and Administrative Tribunal Act 2014 (NT), s 141; Tiver Constructions Pty Ltd v Clair [1992] NTSC 86; (1992) 110 FLR 239, 255; Development Consent Authority v Phelps [2010] NTCA 3; (2010) 27 NTLR 174, [9].

[45] Herbert v An Assessor (Victims of Crime Assistance Act) & Anor [2022] NTSC 76, [55]-[57]; following Osland v Secretary, Department of Justice [2010] HCA 24; (2010) 241 CLR 320, [19]-[20]. Cf Booth v Assessor under s 24 of the Victims of Crime Assistance Act [2019] NTSC 89, [34].

[46] Herbert v An Assessor (Victims of Crime Assistance Act) & Anor [2022] NTSC 76, [56].