Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Taylor v Reilly [2021] NSWCATCD 74 Hearing dates: 16 April 2021 Date of orders: 09 June 2021 [amended 11 June 2021] Decision date: 09 June 2021 Jurisdiction: Consumer and Commercial Division Before: J Rose, General Member Decision: The decision issued on 9 June 2021 is amended pursuant to section 63 of the Civil and Administrative Tribunal Act 2013 and should read as follows: (amendments are shown in bold type) (1) The respondent landlord must pay to the applicant tenant the net amount of $393.65 immediately. (2) The Rental Bond Service is directed to pay the whole of rental bond number XXX to the applicant tenant. Catchwords: LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Disclosure of information to the tenant — Neighbours — Construction noise — abatement of rent — Whether premises rendered uninhabitable — Quiet enjoyment — Vacant possession — Non-payment of rent — Rental bonds — Payment and release Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Protection of the Environment Operations (Noise Control) Regulation 2000 (NSW) Residential Tenancies Act 2010 (NSW) Residential Tenancies Regulation 2010 (NSW) Residential Tenancies Regulation 2019 (NSW) Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336 Chen v Baxter [2014] NSWCATAP 50 De Soleil v Palmhide Pty Ltd [2010] NSWCTTT 464 Finn v Finato [2004] NSWCTTT 179 Gallo v Dawson [1990] HCA 30; [1990] 93 ALR 479 Gray v Queensland Housing Commission [2004] QSC 276 Hampel v South Australian Housing Trust [2007] SADC 64 Hector v Payne [1997] NSWRT 87 Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 Lewer v Smith [2016] NSWCATAP 76 Morgan v Liverpool Corporation [1927] 2 KB 131 NSW Land & Housing Corporation v Quinn (No 2) [2018] NSWDC 161 Phoenix v Guangyue Chen [2020] NSWCATAP 255 Proudfoot v Hart (1890) 25 QBD 42 Stuart v Leonardo [2021] NSWCATAP 111 Summers v Salford Corporation [1943] AC 283 Thomas v Metropolitan Housing Corporation Ltd [1936] 1 All ER 210 Tomko v Palasty (No 2) [2007] NSWCA 369 Warner v Hung, in the matter of Bellpac Pty Limited (Receivers and Managers Appointed) (In Liquidation) (No 2) [2011] FCA 1123 Texts Cited: Nil Category: Principal judgment Parties: Nadine Taylor (Applicant) Paul Reilly (Respondent) File Number(s): RT 20/50692 Publication restriction: Nil REASONS FOR DECISION INTRODUCTION 1. These proceedings arise out of a residential tenancy agreement (the tenancy agreement) between the Applicant (the tenant) and the Respondent (the landlord) in respect of a residential apartment at XXX, Queens Park NSW (the premises). 2. The tenant filed her application in these proceedings on 4 December 2020. She then vacated the premises on 18 December 2020, bringing the tenancy agreement to an end on that date. 3. The application filed by the tenant sought orders for: 1. the landlord to pay the tenant compensation totalling $4000 under s 187(1)(d) of the Residential Tenancies Act 2010 (NSW) (the RT Act); and 2. the rent to be reduced on the grounds that the premises are unusable or uninhabitable or destroyed, under s 45 of that Act. 1. The reasons for seeking these orders were described at length in the "Reasons for the Order/s" panel on the application form. Shortly stated, they include the following: 1. When she moved into the premises the tenant explained to the managing agent that she needed to live in due to her work and she expressed concerns regarding potential noise. The managing agent stated that her privacy would be respected. 2. The managing agent was aware that the building works were about to take place but did not forewarn tenant that major construction works were about to take place on the property next to the premises. The tenant asserts that had she been informed of this she would not have signed the tenancy agreement. 3. The building noise was excessive and ran for long periods, 7 days per week. This rendered the apartment uninhabitable during the day, as the tenant was unable to sleep or work or study at the premises during daytime hours and had to go to various houses instead. The noise continued for over 6 months. 4. When the tenant asked for a rent reduction she was only offered a maximum of $100 per week. The landlord stopped the rent reduction in January 2020 even though the building works had recommenced after the Christmas break, and were continuing. 5. The tenant's inconvenience was exacerbated as she was working as a nurse "on the front line" involved in the COVID-19 pandemic, and was living in lockdown at the time due to her job. This caused her further stress and anxiety. Further, she suffers from PTSD (post-traumatic stress disorder) and needs to live in a quiet place. She says that the noise levels triggered her PTSD. 1. Conciliation was attempted on 18 January 2021, but it was not successful. The Tribunal then listed the proceedings for this hearing and made some notes and orders to prepare the matter for the hearing. Those notes and orders included: 3. The applicant vacated after her application was filed. The applicant's claim is amended to include a claim under s 175 [of the RT Act] for the rental bond of $2000 and compensation under s 187 for failure to disclose construction works/noise prior to signing tenancy agreement. The compensation claim includes moving out costs and backdated rent. 4. The landlord makes a partial claim on the bond for wall damage (approx $400) and rent arrears of $635.35. 5. The tenant has filed some documents. 6. The applicant shall provide to the respondent and the Tribunal, either in person or by post, a copy of all documents … on which the applicant intends to rely at the hearing by 01-Feb-2021. The documents are to include a 1 page summary calculating each head of loss. 7. The respondent shall provide to the applicant and the Tribunal, either in person or by post, a copy of all documents … on which the respondent intends to rely at the hearing by 15-Feb-2021. 1. At the start of the tenancy agreement the tenant provided a rental bond of $2,000, which was lodged with NSW Rental Bond Services (the bond). The bond remains frozen there pending the determination of these proceedings. THIS HEARING 1. In accordance with the Tribunal's response to the current COVID-19 pandemic emergency, this hearing was conducted by telephone and lasted about 90 minutes. 2. The tenant appeared on her own behalf. The landlord was represented at the hearing by managing agent, Ferhata Akin from PPD Real Estate at Coogee (the managing agents). 3. At the start of the hearing the tenant stated that: 1. she did not contest the landlord's claim for $400 from the bond for the costs of repairing damage to a wall in the premises; 2. the amounts she claimed were: 1. a refund of the bond ($2,000) less the $400 for that damage ($1,600); 2. compensation for failing to disclose the construction work to the tenant at the start of the tenancy agreement ($3,738), comprising: 1. moving costs – $418; 2. moving boxes – $48; 3. pain and suffering – $2,000; and 4. a rent reduction – $1,542; 1. the tenant disputes the landlord's claim for rental arrears (said to cover the period from 18 December to 29 December 2020 at $71.43 per day). 1. The tenant bases her claim for compensation on the following provisions of the RT Act: 1. s 26 – that the landlord or the managing agent induced her to enter into the tenancy agreement by a false statement or by knowingly concealing a material fact of the kind prescribed by the regulations; 2. s 43 – that the premises became wholly or partly uninhabitable otherwise than as a result of a breach of an agreement; and 3. s 50 – that the landlord breached the tenant's right to quiet enjoyment. 1. Mr Akin confirmed that the landlord pressed his claims for the wall damage and those rent arrears and that the landlord disputed the tenant's claims. He disputed that he or the landlord had known about or failed to disclose the construction works to the tenant, or that the construction works rendered the premises unfit for habitation. Mr Akin also argued that the tenant's claim for a rent reduction was also out of time, as it related to periods in 2019 and early 2020, and that the tenant's claim for pain and suffering was not justified or evidence, and was not caused by the landlord. THE COMMON GROUND BETWEEN THE PARTIES 1. It was common ground between the parties (and I find accordingly) that: 1. The parties entered into a written residential tenancy agreement for the premises on 23 August 2019. The tenancy agreement was generally in the form prescribed under the RT Act and provided for: 1. a term of 52 weeks from 23 August 2019 to 20 August 2020; 2. rent at the rate of $1,000 per fortnight; and 3. the bond was to be $,2000. 1. The tenant paid the bond at the start of the tenancy agreement. The bond was deposited with NSW Rental Bond Services, where it remains pending the determination of these proceedings. 2. The sum of $400 should be deducted from the bond and paid to the landlord to cover the landlord's claim for wall damage. 3. The landlord does not own the adjoining property that is under construction, as referred to in these proceedings. THE ISSUES TO BE DETERMINED 1. The issues to be determined in these proceedings are therefore as follows: 1. Whether the tenant's claim for a rent reduction under s 43(2)(a) of the RT Act is out of time? 2. If no to (1), or if the issue of time is cured by an extension of time, whether the premises became wholly or partly uninhabitable under s 43(2)(a) of the RT Act as a result of the noise coming from the nearby construction site, and for what period? 3. If yes to (2), by what amount did the tenant's rent abate under s 43(2) and 45 of the RT Act in respect of that period? 4. Having regard to (3), whether the tenant is in arrears of rent for the period 18 December 2020 to 29 December 2020, as alleged by the landlord? 5. Whether the landlord is entitled to deduct those rent arrears from the tenant's bond, in addition to the $400 for the wall damage, before the balance of the bond is refunded to the tenant? 6. Whether the landlord and/or the managing agent knew of the construction works to be conducted at the adjacent premises and were obliged to disclose that information to the tenant? 7. Whether the landlord and/or the managing agent failed to disclose that information to the tenant in accordance with that obligation (if any)? 8. If yes to (7), whether the tenant is entitled to compensation in the amounts that she has claimed? 1. Except for the bond, each party who is making a claim has the burden of proving their claim to the civil standard, being the balance of probabilities. Separately, the landlord has the burden of proving his claim on the bond to that same standard because of the special nature of the tenant's bond (see below). Each party also has the burden of proving any affirmative defence that he or she raises to the other party's claims, to the same standard. 2. When proof of a fact is required, the Tribunal must feel an actual persuasion of the occurrence or existence of that fact before it can be found. Actual persuasion is achieved where the affirmative of an allegation is made out to the reasonable satisfaction of the Tribunal. Reasonable satisfaction should not be produced by inexact proofs, indefinite testimony or indirect inferences: Warner v Hung, in the matter of Bellpac Pty Limited (Receivers and Managers Appointed) (In Liquidation) (No 2) [2011] FCA 1123 at [48], per Emmett J, citing Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-2. THE EVIDENCE 1. The tenant relied on 2 bundles of documents provided to the landlord and lodged with the Tribunal on about 17 December 2020 and 2 February 2021, which were marked as exhibits T1 and T2 respectively. The tenant's documents included: 1. in exhibit T1: 1. the tenant's statement, including as the orders sought, which I have treated as the tenant's witness statement and her submissions; 2. an email from the tenant to the managing agents dated 8 June 2020, concerning the building works; 3. a bundle of extracts of documents from Waverley Council concerning development application DA 469/2018 in respect of XXX, Queens Park (No 13); 4. a bundle of photographs of the completed construction said to be taken from the premises or nearby; 5. a bundle of copy of photographs said to be taken inside the premises on 13 January 2021, marked with hand written notes to show what is said to be construction does; 6. a copy of Waverley Council's notice of determination of a development application, dated 6 May 2019 in respect of the construction works at 13 Manning St; 7. emails passing between the tenant and the managing agents on 18 December 2019, 15 January 2020, 14 December 2020 and 15 September 2020 concerning the possibility of a rent reduction; 8. the tenant ledgers for the tenancy agreement, covering the period 26 August 2019 to 30 March 2020; 9. a letter from Catherine Cahill, clinical psychologist, dated 11 December 2020; 10. a letter from Dr Penelope Willcoxson, general practitioner, dated 15 December 2020; 11. a character reference for the tenant from a Renata Field, dated 5 July 2019; 12. a character reference for the tenant from a Sandra Grice, Nursing Unit Manager (undated); and 13. a character reference to the tenant from a Hayley Foster, Chief Executive Officer of Women's Safety NSW, dated 5 July 2019; and 1. in exhibit T2: 1. an updated statement from the tenant dated 27 January 2021, which I have treated on a similar basis; 2. a copy of the landlord's written submissions, with handwritten notations on it; 3. an email from the managing agent to the tenant dated 14 April 2020, concerning the possibility of a rent reduction; 4. a quote from Super Easy Storage, dated 9 December 2020; 5. receipts from Super Easy Storage, dated 10 December 2020 and 11 January 2021; 6. a tax invoice from The Reject Shop for boxes and bubble wrap, dated 7 December 2020; 7. further copies of the letters from Catherine Cahill and Dr Willcoxson, referred to above. 1. The landlord objected to exhibit T1 on the ground of relevance however I decided that I would allow the exhibit to be used in evidence to the extent that it was relevant. The landlord did not object to exhibit T2. 2. The tenant gave oral testimony in support of her application. Mr Akin questioned her on her evidence. 3. The landlord similarly relied on the 2 bundles of documents provided to the tenant and lodged with the Tribunal on about 14 January and 14 February 2021, which were marked as exhibits L1 and L2 respectively. The landlord's documents included: 1. in exhibit L1: 1. the landlord's written submissions; 2. a bundle of email correspondence between the managing agent and the tenant, dated between 20 August 2019 and 15 January 2020; and 3. the tenant ledgers for the premises covering the period 26 August 2019 to 14 January 2021, including the period covered by the ledgers contained in exhibit T1; and 1. in exhibit L2: 1. another copy of the landlord's written submissions contained in exhibit L1; 2. an outgoing condition report for the premises prepared by Mr a can on 22 December 2020, comprising 7 pages of comments and 4 pages of photographs, which was written on an extract of part of the ingoing condition report, dated 21 August 2019; and 3. another copy of the tenant ledgers for the premises as contained in exhibit L1. 1. The landlord also produced a copy of the tenancy agreement between the parties. 2. The tenant objected to exhibit L2 on the ground of relevance. I similarly allowed those documents to be used to the extent that they were relevant to an issue in dispute. The tenants did not object to exhibit L1. 3. The landlord did not adduce any oral testimony in support of his position. JURISDICTION 1. Section 45 of the RT Act gives the Tribunal power to make an order determining the amount of rent payable if the rent is abated under s 43(2) of the RT Act – including because the premises have become wholly or partly uninhabitable otherwise than as a result of a breach of the tenancy agreement. 2. Section 187(1) of the RT Act gives the Tribunal power to make an order for the payment of money and compensation in respect of a residential tenancy agreement that is regulated by the RT Act. 3. Section 175 of the RT Act also gives the Tribunal jurisdiction to make orders concerning payment of the rental bond on application pay a landlord, a tenant or any other person who has an interest in the payment of the bond. 4. I am satisfied on the evidence that there was a residential tenancy agreement between the parties that was regulated by the RT Act and that the Tribunal has jurisdiction to hear and determine this dispute. I am also satisfied that the amounts claimed by the parties are within the monetary jurisdiction of the Tribunal. 5. I will deal with the issue of limitation periods below. THE APPLICABLE LAW 1. The proceedings arise under sections 26, 33, 43, 45, 50, 157, 166, 175, 187 and 190 of the RT Act, and the regulations established under that Act. 2. Section 26 relates to the disclosure of information by the landlord or his or her agent to a tenant that might induce the tenant to enter into a residential tenancy agreement. The section provides (relevantly): 26 Disclosure of information to tenants generally (1) False representations A landlord or landlord's agent must not induce a tenant to enter into a residential tenancy agreement by any statement, representation or promise that the landlord or agent knows to be false, misleading or deceptive or by knowingly concealing a material fact of a kind prescribed by the regulations. 1. Section 7 of the Residential Tenancies Regulation 2010 (NSW) (the 2010 Regulation) applied when the tenancy agreement was entered into. That section set out the material facts that must not be knowingly concealed by a landlord or landlord's agent to induce a tenant to enter into a residential tenancy agreement at that time. The section provided (my underlining): 7 Disclosure of information to tenants generally: s 26 (1) of Act For the purposes of section 26 (1) of the Act, the following are prescribed as material facts that must not be knowingly concealed by a landlord or landlord's agent to induce a tenant to enter into a residential tenancy agreement-- (a) the residential premises have been subject to flooding or bush fire in the preceding 5 years, (b) the residential premises are subject to significant health or safety risks that are not apparent to a reasonable person on inspection of the premises, Note : Disclosure under this provision does not affect the legal obligations of the landlord with respect to the residential premises. (b1) the residential premises are listed on the LFAI Register, (c) the residential premises have been the scene of a serious violent crime within the preceding 5 years, (d) council waste services will be provided to the tenant on a different basis than is generally applicable to residential premises within the area of the council, (e) that because of the zoning of the land, or other laws applying to development on the land, the tenant will not be able to obtain a residential parking permit (in an area where only paid parking is provided), (f) the existence of a driveway or walkway on the residential premises which other persons are legally entitled to share with the tenant. 1. Section 33 of the RT Act provides (amongst other things) that a tenant must pay the rent under a residential tenancy agreement on or before the day set out in the agreement. This requirement is a term of every residential tenancy agreement. 2. Sections 43(2) and 45 of the RT Act contain provisions for the abatement of rent if residential premises under a tenancy agreement (amongst other things) became wholly or partly uninhabitable other than as a result of a breach of an agreement. Those sections relevantly provide: 43 Rent reductions (1) … (2) Premises unusable The rent payable under a residential tenancy agreement abates if residential premises under a residential tenancy agreement are-- (a) otherwise than as a result of a breach of an agreement, destroyed or become wholly or partly uninhabitable, or … (3) (4) Effect of section This section does not limit the rights of landlords and tenants to agree to reduce the rent payable under a residential tenancy agreement. (5) This section is a term of every residential tenancy agreement. and: 45 Remedies for reduction of rent on frustration of residential tenancy agreement (1) The Tribunal may, on application by the landlord or tenant, make an order determining the amount of rent payable if the rent is abated under section 43(2). (2) The Tribunal may order that-- (a) from a specified day, the rent for the residential premises must not exceed a specified amount, and (b) the landlord must repay to the tenant any rent paid by the tenant since the specified day that is in excess of the specified amount. Note : The residential tenancy agreement may also be terminated in these circumstances (see section 109). 1. Section 50(1) sets out the landlord's obligation to provide premises that are reasonably clean and fit for habitation. This requirement is also a term of every residential tenancy agreement. 2. Section 157 of the RT Act defines a rental bond to be: "an amount of money paid or payable by the tenant or another person as security against any failure by a tenant to comply with the terms of a residential tenancy agreement." Accordingly a rental bond is money that belongs to the tenant. It is only paid into Rental Bond Services as a security for any obligation that may arise on the tenants' part. Absent any breach of the tenancy agreement or another obligation by the tenants the bond is to be repaid to the tenants at the end of the tenancy. 1. Section 166 of the RT Act entitles a landlord to claim from the rental bond for, amongst other things, unpaid rent and the reasonable cost of repairing or restoring any part of the premises not left by the tenant in the same condition at the start of the tenancy agreement, having regard to the condition of the premises at the commencement of the tenancy, fair wear and tear excepted. 2. I have referred to sections 175 and 187 above, under "Jurisdiction". 3. Section 190 establishes a landlord or a tenant's right to apply to the Tribunal for an order in relation to a breach of a residential tenancy agreement within a certain time period. The section provides: 190 Applications relating to breaches of residential tenancy agreements (1) A landlord or a tenant may apply to the Tribunal for an order in relation to a breach of a residential tenancy agreement within the period prescribed by the regulations after the landlord or tenant becomes aware of the breach or within such other period as may be prescribed by the regulations. (2) An application may be made-- (a) during or after the end of a residential tenancy agreement, and (b) whether or not a termination notice has been given or a termination order made. (3) A landlord's agent may make an application on behalf of a landlord. 1. Section 39 of the Residential Tenancies Regulation 2019 (NSW) (the 2019 Regulation) applied when the tenant's application was lodged. That section set out the relevant limitation periods as follows (my underlining): 39 Times for making applications to Tribunal--ss 44(2), 83(2)(a), 98(4), 115(3), 125(3), 134(3), 141(2), 175(3) and 190(1) of Act … (8) For the purposes of section 175(3) of the Act, the prescribed period is within 6 months after the rental bond is paid out. (9) For the purposes of section 190(1) of the Act, the prescribed period is within 3 months after the applicant becomes aware of the breach. 1. Lastly, s 41 of the Civil and Administrative Tribunal Act 2013 (NSW) (the CAT Act) permits the Tribunal to extend the time for the doing of anything under the RT Act. That section provides: 41 Extensions of time (1) The Tribunal may, of its own motion or on application by any person, extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation. (2) Such an application may be made even though the relevant period of time has expired. 1. I have considered the parties' claims and defences claims in accordance with these principles. THE BACKGROUND FACTS 1. Having weighed and considered the competing evidence before the Tribunal, I am satisfied on the balance probabilities that the background facts of the matter are as follows: 2. The premises is a residential apartment constructed at the rear of XXX, Queens Park (No 11), over the garage for that property, and was numbered as "11A". The premises included (amongst other things) an entrance hall and stairs. The premises was accessible from the front/side of the house at No 11, which was at the front of the block. There was a detached garage underneath the premises which faced a rear lane, known as Newland Lane. The landlord lived in the house at number 11. 3. On about 14 December 2018 the architect for the neighbouring property at No 13 lodged development application number DA-469/2018 with Waverley Council. The development described in the development application was "construction of detached garage with a studio above fronting Newland Lane, and in-ground pool and removal of 1 tree (to be replaced)". According to the documents obtained by the tenant from the Council and produced in exhibit T1, the works involved demolishing the existing garage and pool at the rear of No 13 and constructing (amongst other things) a new garage, studio and raised garden in the same position, immediately adjacent the garage at No 11 and the premises above it. One of the cross-section plan in that bundle showed the proposed works against the outline of the garage and apartment at No 11 and the existing garage structure which was to be removed. 4. The Council gave consent to the development application on 6 May 2019. Consent was given subject conditions which included, in condition 32: * demolition and building work must only be undertaken between the hours of 7 AM and 5 PM on Mondays to Fridays and 8 AM to 3 PM on Saturdays with no to be carried out on Sundays, public holidays for the weekend which formed part of a public holiday weekends; * excavation works involving the use of heavy earthmoving equipment must only be undertaken between the hours of 7 AM and 5 PM on Mondays to Fridays with no such work to be carried out on Saturdays, Sundays or public holidays; and * acknowledgement construction activities shall comply with the Protection of the Environment Operations (Noise Control) Regulation 2000. 1. The tenant submits that I should accept the Council must have notified the owners of adjoining properties, including the landlord, of the development application between the date it was lodged (14 December 2018) and the date it was approved by the Council (6 May 2019). The landlord submits to the contrary; that he did not have notice of the development by the time the tenancy agreement was entered into. No evidence was led to directly demonstrate that the landlord was given notice of the development application between 14 December 2018 and start of the tenancy agreement. That said, I am aware that the planning and construction laws in this state are such that I can consider it likely that the landlord was at least sent a notice of the proposed development at some time during that period. 2. I accept the tenant's evidence that she inspected the premises at about 5 PM on one night in August 2019 and that it was dark when she carried out that inspection. I accept that she entered the property from the front/side of the house on Manning Street and that she did not see any yellow tape across the neighbouring garage at No 13. I accept that she was not made aware during that inspection that building works would take place next door. 3. On about 20 August 2019 the tenant paid a holding fee of $500 to the managing agents. At 5:26 PM that day the managing agents wrote an email to the tenant acknowledging the holding fee and confirming that the tenant had been approved for tenancy at the premises for a term of 52 weeks proposed to start on 23 August 2019 and requiring one thousand dollars rent in advance (less the holding fee). The email also instructed the tenant how to pay the bond and that Mr Akin would be meeting the tenant and walking the tenant through the lease agreement. The email made no mention of the construction works at No 13. 4. On 21 August 2019 Mr Akin conducted an ingoing inspection of the premises. The ingoing condition report prepared as a result of that inspection (the ICR) was not produced in evidence in these proceedings. A small part of it was extracted in the outgoing condition report prepared by Mr Akin on 22 December 2020, referred to below (the OCR). The OCR contained a panel titled "Special Reporting at Entry Condition Report", which set out various statements about the premises, including statements about "Health issues". The item "Additional comments on health issues, communication facilities, water efficiency devices" in that panel was left blank. Given that other answers from the ICR were repeated in this panel I am satisfied that the "additional comments" item was also left blank on the ICR. 5. The tenancy agreement was prepared by the managing agents and signed by the tenant in Mr Akin's presence on 23 August 2019, in the managing agents' office at Arden Street, Coogee. I accept the tenant's uncontested evidence that she spoke to Mr Aiken about her concerns concerning the garage and the landlord's plan to lease it out to another user before she signed the tenancy agreement, including the possibility that noise would come from the garage into the premises when it was accessed. I similarly accept that the tenant explained to Mr Akin that she was a nurse and worked unsocial hours and needed peace and quiet, and that she worked from home doing domestic violence consultancy work and ran a not-for-profit charity. I also accept her evidence, which was not contradicted by Mr Akin, that he assured her that the property at No 11 was a peaceful area where she would not be disturbed and if there were any issues with the garage the managing agents would speak to the landlord to ensure quiet and privacy. I accept her uncontested evidence that she was not informed about the construction works that would be taking place next door. 6. The tenancy agreement was in the form prescribed under the 2010 Regulation with additional terms. Relevantly, the tenancy agreement provided that: 1. the rent was $1,000 per fortnight, payable in advance starting on 23 August 2019; 2. the tenant must pay a rental bond of $2000 being 4 weeks' rent at that rate; 3. no more than 1 person permitted to occupy the premises at any one time; 4. the parties may agree to reduce the rent payable at any time during the tenancy agreement (clause 8); 5. the tenant had a right to quiet enjoyment in the following form (clause 14) (my underlining): "14. The landlord agrees -- 14.1 that the tenant will have quiet enjoyment of the residential premises without interruption by the landlord or any person claiming by, through or under the landlord or having superior title to that of the landlord (such as a head landlord), and 14.2 that the landlord or the landlord's agent will not interfere with, or cause or permit any interference with, the reasonable peace, comfort or privacy of the tenant in using the residential premises, and 14.3 that the landlord or the landlord's agent will take all reasonable steps to ensure that the landlord's other neighbouring tenants do not interfere with the reasonable peace, comfort or privacy of the tenant in using the residential premises." 1. the tenant agreed not to intentionally or negligently cause or permit any damage to the premises (clause 15.4); 2. the tenant further agreed that when the agreement ended, and before giving vacant possession to the landlord she would (amongst other things): 1. leave the residential premises as nearly as possible in the same condition, fair wear and tear excepted, as at the commencement of the tenancy (clause 17.2); and 2. return to the landlord all keys and other opening devices or similar devices provided by the landlord (clauses 17.6, 52 (b) and 56); 1. if the tenant did not return keys and remote controls for the premises on the date of vacating additional rent would be due as retaining keys constitutes occupation (Addendum A – special conditions); 2. once the fixed term of the agreement ended, the agreement continued in force on the same terms as a periodic agreement unless the agreement was terminated by the landlord or the tenants in accordance with the RT Act (notes, page 10); and 3. the periodic agreement may be ended by the landlord or the tenants by giving written notice of termination at any time; the tenants must give at least 21 days' notice (notes, page 10). 1. The tenant moved into the premises shortly after signing the tenancy agreement. On 26 August 2019 the managing agents applied the holding deposit of $1,000 paid by the tenant towards the first fortnight's rent. 2. I accept the tenant's uncontested evidence that building and demolition work started at No 13 in September 2019 and lasted well into the new year, with a break over the Christmas period. I also accept her uncontested evidence that she spoke to the landlord on numerous occasions and was assured by him that building works would only take a few months. 3. On 15 November 2019 Mr Akin spoke to the tenant "regarding the disruption and email [the tenant] to have [her] concerns in writing. On 8 December 2019 at 10:10 AM, the tenant wrote to the managing agents, stating in part: "I am e-mailing to follow up on the constant noise and building works that are taking place in 11 manning street and the apartment next door. This happened within 2 weeks of me moving in to the property and continues… I have also spoken to the RTA has the constant noise and building work is impacting greatly on my physical and mental health, I also have a letter from GP that is available on request. I am a nurse who works shift work. I am unable to even reside or study from my home during the week due to the extreme drilling, concreting and grinding noise. This has resulted [in] me having to stay at a friends when I work nightshifts. Study at a friends or in the library and basically be anywhere but in the property I am paying $500 a week to rent. The building work starts from 7 am on a Monday with the builder arriving and parking outside the garage from 6.15 in the morning. I am woken by the builder talking and playing loud music. They have 0 respect for the fact my window is directly above their car where they play music full blast from the car with all the windows down so that they can hear it whilst building and drilling next door. I was woken Saturday at 8 am after a night shift by building work, I tried to sleep in the front room but the builders had again parked directly outside the garage and were playing music so loud they could not even hear the TV when I had the volume up for to drown out the noise. After being exhausted at work I cancelled my plans Saturday night so I could get an early night before I work from 1 – 11 pm Sunday and was woken by hammering at 9 am. This is not acceptable. I am effectively living on a building site. The brick and concrete dust also comes in through by windows and is a health hazard in itself. I have 2 weeks off in January and am looking at going away as I cannot stay in this apartment due to the noise and building works. As previously discussed I am seeking a rental reduction. Look forward to your response." 1. On 10 December 2019 at 9:02 AM, Mr Akin acknowledged receipt of that email from the tenant. Mr Akin proposed a rent reduction of $50 per week, stating: "Does a $50pw rental reduction sound fair and reasonable? The construction is out… Of our hands and the landlords hands. I empathise with you and will pass on the below to the landlord and will revert back as soon as possible." 1. Mr Akin sent a further email to the tenant at 9:28 AM, stating: "Further to the below, I've called the council regarding the workers arriving early at 6:15 am to blast music and they have said you can report the license plate of the vehicle to the noise complaint line 131444." 1. The tenant responded to Mr Akin at 5:03 PM on Friday, 13 December 2019. She wrote: "apologies for the delay [in] responding I have been very busy at work. I feel that $50 a week is incredibly minimal considering the noise levels and the fact that I am unable to sleep in the apartment after 7 AM or spend any time in the apartment during the day. I have also been informed that the landlord would have received a notification re-the building work that was taking place next door and I was not informed of this at anytime prior to signing the lease. I have spoken to the RTA and played videos of the noise and have been advised that the property in inhabitual [sic] during the day and given the fact that I have to sleep elsewhere when I work night shifts that I should be entitled to a "significant deduction". I also have booked annual leave from 25th December until 10th January. I need downtime and rest and need to know if building work will take place during this time as I will have to look at going away?" The videos referred to in this email and in the following emails have not been relied on in evidence in these proceedings. 1. Mr Akin responded at 1:49 PM on Monday 16 December 2019, stating: "The landlord has advised me the builders will be on Xmas break finishing up this Friday until the 10th of Jan, so that should provide you with some peace and quiet for the holiday period/break. We can offer $100 per week rent reduction for this week and for when the builders returned until the renovation has been completed. Which shouldn't be too much longer hopefully! Let me know if you are agreeable to this or feel free to call me to discuss" 1. The tenant responded to Mr Akin at 2:48 PM on Wednesday, 18 December 2019, stating in part: thank you for your e-mail. $100 rent reduction for this week is not acceptable given the conditions I have been living in for the last 3 months. I will accept $100 a week rent reduction on the grounds that it is backdated to the date I made to the complaint on 15/11/19. As previously mentioned I have a legal right to have peace, comfort and privacy at home. The noise levels have been unbearable and I am happy to send you the numerous videos of the grinding and drilling that starts at 7 AM daily Monday – Saturday. As previously mentioned I have had to stay elsewhere when I am working at night shifts. This constant noise and lack of sleep has impacted my health and well-being. I have a very responsible job and work long hours. On my application I stated that I was a nurse. At no time was I informed of the building works so that would be taking place." At 4:04 PM the same day, Mr Akin responded, writing in part: "Please forward the correspondence dated 15/11/19 or when you first made the complaint and I will discuss with the landlord with regards to backdating the reduction. Also, please send through the evidence and videos of the drilling/grinding as you have suggested below for our records. As previously mentioned, the workers are due to go on break for 3 weeks finishing up this Friday and we will be happy to continue the rent reduction from when/if the disturbance continues. I understand your rights to quiet enjoyment of the property and I want to work with both you and the landlord to achieve a positive outcome where you feel adequately compensated. I just need to confirm with the landlord some dates and figures." 1. Prior to this point the tenant had paid rent at the rate of $500 per week ($1,000 per fortnight) – from the start of the tenancy agreement through to and including the payment that she made on 17 December 2019. From 20 December 2019 to 17 January 2020 the tenant paid rent at lower rates: she paid 1 instalment of $900 on 20 December 2019, 2 instalments of $800 on 6 and 15 January 2020 and 1 instalment of $200 on 17 January 2020 (to top up the previous 2 instalments to $900 each, it would appear). 2. The tenant took a series of photographs inside the premises late in the afternoon on 13 January 2020. The photographs showed what I infer was construction dust, settled on various surfaces in the premises, including on window frames, the top of a kettle and a stovetop. 3. On 15 January 2020, at 4:57 PM, the tenant wrote to Mr Akin stating in part: "I am just writing to follow-up on the email I sent on 18th December and the images and videos of the extremely loud building works that have been taking place. I feel I have been very reasonable given the fact that I was not informed of the building work that would be taking place prior to signing my contract and the impact of the extreme noise levels have had on my well-being and the fact that I can not sleep or enjoy my home during the day. When I signed the lease in August I spoke to the agent re-my concerns with the garage being rented out and accessed as I am a nurse and works shift work. I was not informed of any building works that would be taking place prior to signing the contract. I also study and run a charity from home, something I am unable to do due to the excessive noise. The brick dust is also a serious health hazard and I will forward you some photos of the brick dust that comes through my windows, even with them closed. I have spoken to the RTA and understand the NSW tribunal can backdate up to 12 months and not when the tenant 1st formally writes to complain about the noise levels. Section 44b. I have also been advised to apply for a rent abatement, section 45. I hope that this matter can be resolved quickly and fairly to both parties and feel I have been very reasonable given the length of inconvenience and the impact on my health." Mr Akin responded at 5:36 PM, stating in part (the underlining was in the original): "… could you please clearly outline what you're demanding regarding the tenancy? Would you like to vacate penalty free? Or just a rent reduction? Following on from our conversations/correspondence from last year, the landlord has agreed to $100 reduction from when the issue was reported until the works are completed. I was advised, the workers went on holiday from 21/12/19 until 10/1/20. So I'm assuming they have started working again, please confirm." 1. The rent ledger records that on 31 January 2020 the tenant's rent was reset to one thousand dollars per fortnight and noted as paid to 23 January 2020 with a part payment of $785.71. This was identified as "Rent consideration from owner". 2. The rent ledger also records that in May 2020 the tenant received credits of $199.63 and $171.79 (totalling $371.42) "for Compensation – Construction Works". 3. The fixed term under the tenancy agreement expired on 20 August 2020. From that date until the end of the tenancy agreement in December 2020 (about 4 months) the tenants' occupation of the premises continued as a periodic tenancy. 4. As noted above, the tenant lodged her application in these proceedings on 4 December 2020. 5. On 11 December 2020 the tenant obtained a letter from her clinical psychologist, Catherine Cahill, who had been "working with her for management of anxiety and depression in the context of complex Post-traumatic Stress Disorder", following a referral from Dr Penelope Willcoxson. The letter stated in part: "Ms Taylor reports a high degree of distress caused by significant noise in her home due to building works occurring over a six-month period. She works as a nurse and runs a charity for people who have experienced domestic violence. Loud noise triggers her startle response and is a reminder of her trauma. She reports that she made efforts to ensure the property was not noisy prior to taking on the lease." The tenant obtained a similar letter from her GP, Dr Willcoxson, On 15 December 2020. That letter also recounted the tenant's history of post-traumatic stress disorder and the tenant's similar reports to Dr Willcoxson about her experiences with the premises. Dr Willcoxson opined that "loud noises act as a trigger for a fight or flight reaction" and that the tenant's experiences with the premises have "a very adverse effects on [the tenant's] mental, emotional and physical health". 1. The tenant removed her belongings from the premises by about 18 December 2020, however she did not return the keys to the managing agent until 29 December. 2. Mr Akin conducted an outgoing inspection of the premises on 22 December 2020, following which he prepared the OCR. The OCR recorded that there were damaged walls in the hallway/staircase which had been poorly patched with putty, and were not in the original condition. The photographs on page 6 of the OCR support that conclusion. As noted above, the tenant does not dispute liability for that damage. THE TENANT'S CLAIM FOR REDUCTION OF RENT (S. 45) The limitation period issue 1. The landlord argues that the tenant's claim for a reduction of rent under ss 43(2)(a) and 45 of the RT Act is out of time as it relates to events in 2019 and early 2020. In putting that assertion forward, the landlord did not identify any particular limitation period as applying to that claim. 2. Sections 43(2)(a) and 45 apply together only if residential premises under a residential tenancy agreement are destroyed or become wholly or partly uninhabitable "otherwise than as a result of a breach of an agreement". A claim under those sections therefore does not relate to a breach of the tenancy agreement and does not arise "consequent to" a breach, to adopt the words from s 190. 3. Consequently, s190 of the RT Act and the limitation period in s39(9) of the 2019 Regulation do not apply to a claim under s 45. In fact, the RT Act and the 2019 Regulation do not set any period in which an application may be brought under s 45 in respect of premises becoming wholly or partly inhabitable under s 43(2)(a) of the Act. 4. Rule 23 of the Civil and Administrative Tribunal Rules 2014 (NSW) (the CAT Rules) therefore applies. Pursuant to sub-rule 23(3)(b) an application for which enabling legislation (such as the RT Act) does not specify the period in which the application is to be made must be made "within 28 days from the day on which the applicant became entitled under the enabling legislation to make the application. 5. In the case of s 45 of the RT Act, the tenant became entitled to make the application when the premises first became wholly or partly uninhabitable within the meaning of s 43(2)(a). That subsection anticipates the total or partial loss of use of the premises by the tenant. That is ultimately a question of fact: once the finding is made that the premises became uninhabitable from a particular date, the rent abates from that date and the time to bring the application begins to run from that date. 6. In the present case, the tenant seeks to assert that the premises were uninhabitable in 2 periods: from 21 August to 15 November 2019 (12 weeks and 2 days), and from 13 to 27 April 2020 (2 weeks). Both of those time periods occurred more than 7 months before the tenant filed her application on 4 December 2020. The tenant's application for an order under s 45 reducing the amount of rent payable in those periods is therefore out of time. 7. As identified above, s 41 of the CAT Act gives the Tribunal power to extend the period of time for bringing such an application even though the relevant period of time has expired. Rule 8 of the CAT Rules provides, however, that application for an extension of time made under that section must be made in writing unless the Tribunal dispenses with that requirement. 8. The tenant has made no application extend time for bringing her claim under s 45, whether in writing or otherwise. Her only statement on point at the hearing was to say in reply to the landlord's submission that she did not believe she was out of time and to then assert that the landlord and the managing agent kept changing the goalposts. That notwithstanding, the Tribunal also has discretion to extend time of its own motion. 9. It must be remembered that the time limits set for the doing of things under both the RT Act and the CAT Act in respect of tenancy matters provide important protections for tenants, landlords and some third parties against claims being asserted against them in relation to matters that arose outside the range of those time limits. Those time limits limit the risk and liability of parties in tenancy relationships. The broad policy of the legislation might therefore be viewed as requiring tenancy disputes to be asserted promptly and brought to finality quickly. 10. The discretion to extend time under s 41 of the CAT Act is unfettered, but it must be exercised judicially and with regard to the statutory command in section 36 of the CAT Act, which is to the effect the guiding principle applying to the Tribunal's procedure "is to facilitate the just, quick and cheap resolution of the real issues in the proceedings": Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [18] (Jackson). As stated in Jackson at [21], time limits are established by legislation for the purpose of promoting the orderly and efficient conduct of proceedings in the Tribunal, providing certainty for the parties to proceedings, and achieving finality in litigation. For these reasons, time limits should generally be strictly enforced. 11. The discretion to extend time is therefore given for the sole purpose of enabling the Tribunal to do justice between the parties. The object is to ensure that the rules which fix times for doing acts don't become instruments of injustice: Chen v Baxter [2014] NSWCATAP 50 at [34]-[35]. This means that the discretion can only be exercised in favour of an applicant on proof that strict compliance with the rules will work an injustice to the applicant. The grant of an extension of time is not automatic. 12. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for an extension of time: Gallo v Dawson [1990] HCA 30; [1990] 93 ALR 479 at [2], per McHugh J. 13. Generally, in considering an extension of time the Tribunal will be required to consider: 1. The length of the delay in bringing the action; 2. The reason for the delay in bringing the action; 3. The applicant's prospects of success – that is usually whether the applicant has a fairly arguable case; and 4. The extent of any prejudice suffered by the respondent: Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61 at [55] (per Basten JA); Jackson at [22]. 1. The evidence discloses that the application was brought at least 7 months after the end of the construction works and about 15 months after they were first noticed by the tenant, in September 2019. The tenant was aware of the noise and dust from the building site within 2 weeks of moving into the premises on 23 August 2019. She made her first claim for a reduction of rent by email in mid-November 2019, about 3 months later. 2. By January 2020 she had received advice to seek a rent reduction under s 45, as disclosed in her correspondence, yet she took note steps to bring the action until December of that year. In the meantime the landlord had offered, and she had accepted, reductions of rent or credits because of the construction noise. The tenant has provided no reasons for the delay in bringing her claim until December 2020- just after she gave notice terminating her tenancy – even though the works were conceded (on her evidence) in April 2020 and the fixed term of her tenancy had expired in August 2020. 3. Conceptually I consider that the tenant would have a fairly arguable case to say that she has been adversely affect by noise coming from the construction site and the nearby street. That does not mean, however, that the premises were necessarily unfit for habitation. As set out in De Soleil v Palmhide Pty Ltd [2010] NSWCTTT 464, the test of uninhabitability is a difficult one to satisfy and it should not be lightly found by the Tribunal that premises are not fit for habitation. 4. "Fit for habitation" or "habitable" are terms that have been used in leases and tenancy agreements for over 150 years. For example, it was said in Proudfoot v Hart (1890) 25 QBD 42 that "The habitability standard would be concerned with the minimum safety standards echoed in the above cases [not reproduced here], going to both structural and health issues". Separately, it was also held that premises are habitable where that the state of the premises does not represent a threat to life, limb or health of the tenant: Morgan v Liverpool Corporation [1927] 2 KB 131 at 145. Elsewhere, it was held that the term habitable "[imported] some reference to what we call humanity or humaneness" and is of "wide and elastic" meaning to take account "the needs and circumstances of poor people living in confined quarters": Summers v Salford Corporation [1943] AC 283 at 292. In more recent times, the Queensland Supreme Court concluded in Gray v Queensland Housing Commission [2004] QSC 276 that "if the state of repair is such that injury is to be expected, or will naturally occur, from the ordinary use of the premises, they cannot be regarded as fit for human habitation. 5. In Finn v Finato [2004] NSWCTTT 179 the Tribunal held that the requirement for "fit for habitation must import such a state of repair that the premises might be used and dwelt in, not only for safety, but for reasonable comfort, by the class of persons by whom and for the sort of purpose for which, they were to be occupied". Similarly, Milsteed J stated in Hampel v South Australian Housing Trust [2007] SADC 64 at [63]: "In my opinion, a house is unfit for human habitation if an occupier could be expected to suffer physical injury or injury to health from the ordinary use of the premises. It may be so unfit for any reason. The risk to health or safety may arise because the premises are in a state of disrepair or dilapidation or because of a lack of facilities such as the provision of adequate water, light, ventilation, and so on." 1. It is possible that noise and dust from an adjacent construction site could render premises uninhabitable, but much depends on the strength of the evidence that supports the claim. For example, the premises in Hector v Payne [1997] NSWRT 87 were located next to a local primary school, where a new wing was being constructed. As reported in the decision: Uncontroverted evidence was produced to show that construction using heavy machinery took place at all hours, including early mornings and weekends and on at least one occasion in the very early hours of the morning of the 19th of December 1996. Windows and doors could not be opened because of noise and dust; washing could not be hung out to dry due to the dirt in the air; and access to the back yard and was impossible due to noise and dust and the fact that it was from time to time flooded with chemicals flowing into it from the construction site next door. Attempts to negotiate with the builders proved fruitless with the response to the tenants' pleas ranging from the negative to the abusive. The Tribunal determined in that case that the rent would abate from the date the tenants gave the notice of termination to the landlord. 1. The evidence adduced by the tenant in this case is similarly uncontroverted. It was not contradicted and it was not discredited in questioning. It addressed many of the elements set out in that passage in Hector, quoted above. In short, the claim is at least fairly arguable. 2. Lastly, the landlord has not provided any evidence or made any submission that he would suffer any prejudice if time was extended to permit the claim to be made. 3. Balancing these factors I am satisfied that it is appropriate for time to be extended to allow the tenant to bring her claim under s 45 of the RT Act. Consideration of the claim 1. The tenant's uncontroverted evidence was that building and demolition works started in September 2019, although she could not remember the exact date. It is possible that the works started earlier than that, and may have been underway when the tenant first inspected the premises certainly it was open for the neighbour to have started those works given that development consent had been given several months earlier, in May 2019. 2. As noted in the facts as found, the works involved the demolition of a large garage structure and an existing swimming pool immediately adjacent to the premises, which was very close to the common boundary. After that the works involved the construction of a 2-story garage and studio building, retaining walls, stairs, elevated gardens and a new swimming pool, with on-site water detention systems below. The plans show that the works concerned were quite substantial. 3. The tenant's uncontroverted evidence, which I have accepted, was that instruction work took place 6 or 7 days a week for very long hours, and that it often generated or involved loud noise outside the hours approved by the Council. The tenant worked as a nurse and worked regular shift work. On the days when she was not working shift work she was often involved in consultancy work and charity work, which she did from home. 4. The tenants uncontroverted evidence, which was also supported by a small number of photographs, was also that the premises were constantly full of dust and dirt coming from the premises, including brick dust, and that the windows of the premises were filthy. 5. I am satisfied on the tenant's evidence that she was unable to sleep at the premises during the day because of the noise and the dust coming from the construction site next door. I am also satisfied that the tenant's attempts to complain to the managing agents, the landlord and to outside authorities about the noise and the dust were fruitless: they did not result in any abatement of the noise or the dust. 6. In my view this is a case where, like Hector, the safety and the reasonable comfort of the tenant was significantly adversely affected by the construction work. On the tenant's uncontroverted evidence this continued from early September to about 24 December 2019 and again from about 13 January to about mid-April 2020, when the builders completed jobs at the site. The tenant continued to live at the premises throughout this time although, as she stated in her, she was unable to sleep or work at the premises during daylight hours while much of the work was conducted. 7. I am satisfied on the whole of the evidence that has been put before the Tribunal that the premises were partly rendered uninhabitable as a result of the building works from about start of the tenancy agreement on 23 August 2019 to about 15 April 2020 (a period of 237 days, or 33 weeks and 6 days) and that the rent payable by the tenant automatically abated under s 43(2)(a) of the RT Act proportionately to that part. Quantifying the claim 1. By her calculations in exhibit T2, tenant claims a rent reduction for only 2 distinct parts of that period, on the basis that she has already received a rent reduction has proffered by the landlord for other parts of the period. 2. I am satisfied that the tenant is entitled to a rent reduction for the 2 parts that she has set out in her claim, namely from 21 August 2019 to 15 November 2019 – for 12 weeks and 2 days; and from 13 to 27 April 2020 – for 2 weeks. That is a total of 14 weeks and 2 days, or 100 days. 3. The tenant claims that the rent reduction should be $100 per week, which was the amount that the landlord previously proffered to her. In the absence of evidence to the contrary, I agree that is a reasonable rate to apply in this case. That rate represents 20% of the weekly rental payable by the tenant and amounts to $14.29 for each day in that period. 4. I therefore finds that the tenant is entitled to the benefit of a reduction of rent in the total sum of $1,429. THE TENANT'S CLAIM FOR COMPENSATION FOR MISREPRESENTATION IN SIGNING THE TENANCY AGREEMENT (S 26) The limitation period issue 1. This part of the tenant's claim seeks compensation for breach of s 26(1) of the RT Act, for knowingly concealing a material fact of a kind prescribed by the regulations. While the claim seeks compensation, the claim does not arise "in relation to a breach of a residential tenancy agreement", within the meaning of s 190. Accordingly that section, and the limitation period applicable to it, do not arise on this part of the claim. As no other limitation period is established by the RT Act or the 2019 Regulation, the limitation period in rule 23 of the CAT Rules also applies to this claim. 2. On the applicant's case, the applicant became entitled under the RT Act to apply for compensation when she first suffered loss or damage as a result of the false or misleading conduct. In my assessment that occurred when she entered into the tenancy agreement based on that conduct (if the conduct occurred). At that point tenant submitted herself to a raft of legal liabilities and obligations as set out in the tenancy agreement and the RT Act more generally. On that analysis, the 3 month period for bringing a claim for breach of s 26(1) would have expired on 23 November 2019, just over a year before the tenant filed her application in these proceedings. 3. The considerations that I have set out above in relation to an extension of time also apply here. Again, the tenant has not made any application (written or otherwise) for an extension of time. As a matter of discretion, the Tribunal can again extend time of its own motion and on the principles set out above. 4. The factors that I have set out above concerning the length of the delay, the reason for the delay and prejudice to the landlord are also relevant to this part of the claim in much the same way. This leaves me with the question of whether the claim is fairly arguable. 5. As noted by the Appeal Panel in Lewer v Smith [2016] NSWCATAP 76 at [23], the factual matters which the Tribunal is required to address when determining whether the landlord had breached s 26(1) of the RT Act through the making of a statement, representation or promise, are that: 1. the landlord or landlord's agent induced a tenant to enter into a residential tenancy agreement; (the first material question of fact) 2. the inducement was by way of a statement, representation or promise; (the second material question of fact) 3. the landlord or agent knew that statement, representation or promise to be false, misleading or deceptive (the third material question of fact). The landlord may also be liable for misleading statements made by an agent if "the representations related to the core function of the managing agent to obtain a tenant for the property": Lewer v Smith at [29]. 1. Similar factual matters arise in relation to whether the landlord or the agent had induced a tenant to enter into the tenancy agreement by knowingly concealing a material fact kind prescribed by the regulations: 1. the landlord or landlord's agent induced a tenant to enter into a residential tenancy agreement; (the first material question of fact) 2. the inducement was by way of concealing a material fact of the kind prescribed by the regulations; (the second material question of fact) 3. the landlord or agent knew that he or she was concealing a material fact of the kind prescribed by the regulations (the third material question of fact). 1. The tenant does not assert that the landlord or his agent made a statement, representation or promise about the construction works (or the lack thereof) at No 13. Broken down, the tenant's case is that: 1. the construction works were a material fact of the type described in s 7 of the 2010 Regulation – ostensibly that they subjected the premises to a significant health or safety risk that was not apparent to a reasonable person on inspection of the premises (s 7(b) of the 2010 Regulation); 2. the landlord or the agent "must have known" (firstly) of the construction works and the approval of them by the Council and (secondly) of the "fact" that the construction works subjected the premises to significant health or safety risks that were not apparent to a reasonable person on inspection of the premises; 3. the landlord or the agent concealed those facts; and 4. the landlord or the agent knew that they were concealing those fact. 1. It is not enough for the tenant to merely assert that the landlord or the agent knew about and concealed the fact that the construction works were approved and might be carried on during the term of the tenancy agreement. To succeed under s 26(1) the tenant must show on the balance of probabilities that the landlord concealed one or more of the fact prescribed in s 7 of the 2010 Regulation. Further, it is not enough for the tenant to merely assert that the landlord or the agent "must have known" that the proprietor of No 13 had sought and/or obtained consent from the Council to undertake the construction works. As indicated at the outset, the tenant has the burden of proving her claim on the balance of probabilities and this involves proving knowledge of the relevant facts and knowledge that the landlord or the agent were concealing those fact. 2. The evidentiary case proffered by the tenant does not rise that high. It is ultimately based on conjecture or supposition about what the landlord or the agent "must have known" and it does not address the issue of whether the risks referred to in s 7 would be objectively apparent to a reasonable person on inspection of the premises. 3. As a result I am not satisfied that this part of the claim has sufficient prospects of success for an extension of time be granted in respect of it. I therefore decline to extend time in respect of this part of the application. Consideration of the claim 1. As time has not been extended it is not necessary for me to consider this part of the application any further and I have done above. THE TENANT'S CLAIM FOR COMPENSATION FOR BREACH OF QUIET ENJOYMENT (S 50) The limitation period issue 1. This part of the tenant's claim seeks compensation for breach of clause 14 of the tenancy agreement, as stipulated by s 50 of the RT Act. Contrary to the previous claim, this claim does arise "in relation to a breach of a residential tenancy agreement". Accordingly s 190 and the limitation period applicable to it under s 39 (9) of the 2019 Regulation applied to limit the time for bringing the application to 3 months after the applicant becomes aware of the breach. As the application was lodged on 4 December 2020 the applicant would have had to have become aware of the breach by 4 September 2020 at the earliest in order for the claim to have been brought within time. 2. The considerations that I have set out above in relation to an extension of time also apply here. Again, the tenant has not made any application (written or otherwise) for an extension of time. As a matter of discretion, the Tribunal can again extend time of its own motion and on the principles set out above. 3. The factors that I have set out above concerning the length of the delay, the reason for the delay and prejudice to the landlord are also relevant to this part of the claim in much the same way. This leaves me with the question of whether the claim is fairly arguable. 4. For clause 14 to have been breached the interruption or interference with the tenant's quiet enjoyment, or reasonable peace, comfort or privacy, must have been committed by one or more of the landlord, the landlord's agent or a person claiming by, through or under the landlord or having superior title to that of the landlord, or the landlord's "other neighbouring tenants". The construction work and the noise for dust generated by the builders next door fall into none of these categories. 5. While the tenant also asserts in paragraph 14 of her statement that the landlord carried out building works on Friday 21st – Saturday 22nd of February 2020 in his garden, that assertion is vague and generalised and it is not sufficient to persuade me on the balance of probabilities that the prohibition on interfering with the tenant's reasonable peace, comfort and privacy. It is also not supported by any other evidence. 6. I am therefore not satisfied that this part of the claim has sufficient prospects of success for an extension of time to be granted in respect of it. I also consider the delay in bringing this part of the claim to be excessive. I therefore decline to extend time in respect of this part of the application. Consideration of the claim 1. As time has not been extended it is not necessary for me to consider this part of the application any further and I have done above. THE LANDLORD'S CLAIM ON THE BOND FOR UNPAID RENT (S 33) 1. The landlord asserts that the tenant did not vacate the premises until she returned the keys to the managing agent on 29 December 2020. The tenant disagrees, arguing that she vacated the premises on 18 December and that she was delayed in returning the keys by other reasons. 2. As noted above, the tenancy agreement stipulated in no less than 3 places that the tenant was required to return to the landlord all keys and other opening devices when the agreement ended. It further stated in one of the special conditions in Addendum A that additional rent would be due if the tenant did not return the keys on the date of vacating the premises. As such, it was a contractual term agreed between the parties that the rent would be due and payable by the tenant until the latter of the date when the tenant vacated the premises and returned the keys. 3. Separately, in Stuart v Leonardo [2021] NSWCATAP 111 (which was decided on 3 May 2021) the Appeal Panel recently said the following in relation to ending the tenancy and returning the keys (at [60]): "The tenancy ends when possession is given up to a landlord. This is a question of fact. Matters relevant to determining whether possession has been given up include whether a tenant has left the premises and met their obligations under clause 17, including delivery up of the keys. This is because the performance of these obligations before the tenancy ends is consistent with a tenant relinquishing use and control of the premises and returning possession of the premises to the landlord in the state as required by the agreement." 1. The Appeal Panel also referred to Phoenix v Guangyue Chen [2020] NSWCATAP 255, a decision of the Appeal Panel (differently constituted) in December 2020, where it was said at [72]-[77]: 72 The significance of the delivery of keys in the context of the giving of possession was considered by the English Court of Appeal in Thomas v Metropolitan Housing Corporation Ltd [1936] 1 All ER 210. That case concerned the question whether a tenant was protected by the English Rent Restriction Acts. Under legislation enacted in 1923, where a landlord came into possession of a dwelling, to which the Rent Restriction Acts had previously applied, at any time after the passing of the 1923 legislation, then the Rent Restriction Acts ceased to apply to the dwelling. "Possession" was defined as meaning "actual possession", with the result that a landlord did not come into possession by reason only by reason of a change of tenancy made with the landlord's consent. 73 The facts giving rise to those proceedings were that a tenant who was entitled to the protection of the Rent Restriction Acts had moved her furniture out of the premises on the middle of the day on a Saturday and left the key to the premises at the landlord's agent's offices on the Saturday afternoon. The incoming tenant had occupied the premises over the weekend but only signed a lease on the following Monday. The trial Judge held that the protected tenancy came to an end on the Saturday and that the landlord had entered into actual occupation upon delivery of the key . That conclusion was upheld by the Court of Appeal. 74 Slesser LJ held, at 214: "There are many cases ... to the effect that the giving of a key giving access to the premises may amount to actual possession; and, when this is done with the intention to give possession, that possession will be an actual possession". 75 Scott LJ held, at 216: "Actual possession of empty premises, or of chattels which are locked up within a building or in a package of some sort, is retained by retaining the key . Possession of the key gives actual possession. The reason why there is so little law on the point is, I think, that it is difficult to imagine that anything to the contrary could ever have been contended ... the evidence is ... quite clear that the key of the premises was left with the landlord by the tenant going out on Saturday, October 17. That was a symbolical giving up of possession, leaving the actual possession in the landlords until the landlords parted with possession to somebody else." 76 Thomas v Metropolitan Housing Corporation was applied, in relation to a residential tenancy governed by the [RT Act], by P Taylor SC DCJ in NSW Land & Housing Corporation v Quinn (No 2) [2018] NSWDC 161. His Honour held that, in circumstances where a tenant had not returned the keys and there was no evidence of the date when he had vacated the premises, the tenant was liable for an occupation fee until the date of execution of a warrant for possession. At [258]-[259] his Honour held: 258 Although Mr Quinn may have vacated the premises earlier, there is no evidence that he returned the key , and, at least until late July 2014, the evidence is to the contrary. Having retained the key , he retained actual possession. Any presumption that he acted in accordance with the order of the Tribunal cannot displace the evidence that he had not returned the key by late July 2014, the presumption of continuity and an available Jones v Dunkel inference arising from his unexplained failure to give evidence on the subject. 259 As there is no evidence that vacant possession was earlier "given to the landlord", Mr Quinn is liable for the occupation fee until possession was proved to be taken by the Corporation. ... 77 It is clear that the question whether a tenant has given vacant possession of premises is a question of fact in each case. However, in our view, as Taylor DCJ held in NSW Land & Housing Corporation v Quinn, ordinarily a tenant does not give up vacant possession of premises until they return the keys to the landlord or the landlord's agent. 1. The Appeal Panel continued in Phoenix, stating at [78]-[82]: "78 Any other conclusion would create a difficulty for a landlord who knows that a property subject to a residential tenancy is empty. If the keys have not been returned, the landlord could not be confident that the tenant had abandoned the property or intended to terminate the tenancy. 79 In circumstances where a tenant appears to have abandoned the property, the landlord is entitled to approach the Tribunal for a declaration pursuant to s 106 that the tenant has abandoned the premises. Having obtained such a declaration, the landlord would be entitled to enter the premises. In the absence of such a declaration, a landlord would be at risk of committing an offence under s 120 of the [RT Act] if they were to enter the premises in circumstances where the tenant had not returned the keys. 80 There may be cases where a tenant gives notice that they have vacated the property and have in fact left the property empty but haven't handed over the keys. In those circumstances the landlord would generally be entitled to act upon the tenant's notification and enter the property and change the locks on the basis that the tenant had communicated an intention to deliver vacant possession. 81 There is no evidence in this case that the appellant gave any notice to the respondent or the respondent's agent that she had vacated the premises prior to 8 February 2020. 82 In our view the Tribunal did not make an error of law in concluding that the tenant did not give vacant possession until she returned the keys on 11 February 2020, nor could it be said that that conclusion was against the weight of evidence or not fair and equitable." 1. After examining the facts, the Appeal Panel in Stuart also determined that possession was effectively given to the landlord when the keys were returned, stating "At this point, the tenant ceased to have access to the premises and ceased to be able to exercise rights associated with possession" at [66]. 2. The tenant has proffered no evidence to establish that she gave any notice to the landlord or the managing agent that she had vacated the premises and had left the property empty but hadn't handed over the keys, as referred to by the Appeal Panel in Phoenix at [80]. On that basis, the relevant facts are that the tenant continued to retain the keys and exercise control over the premises until she returned the to the managing agent on 29 December. The ordinary situation referred to in Phoenix at [77] and adopted in Stuart at [66] also applies here. 3. I therefore find that for both these reasons (the terms of the special condition and on the application of the principles described above to the facts of this case) the tenant continued to be liable to pay rent until 29December 2020. 4. The rate of $1,000 per fortnight is equivalent to a rate of $71.428 per day. The rental ledger shows that the tenant's rent was paid up to and including 17 December 2020 with a part payment of $221.79. The period from 18 December 2020 to 29 December 2020 amounts to 12 days which, at that daily rate, amounts to $857.14. From that must be deducted the part payment, leaving a balance of $635.35 due and payable by the tenant, as claimed by the landlord. 5. That amount and the amount conceded by the tenant for the damaged wall ($400) should be set off against the amount payable by the landlord to the tenant as decided above ($1429). That leaves a net balance of $393.65 payable by the landlord to the tenant. PAYMENT OF THE BOND 1. As the amount payable by the tenant to the landlord has been accounted for by way of set off, there is no need for the landlord to be paid out of the bond. I am therefore satisfied that the whole of the bond should be repaid to the tenant. CONCLUSION AND ORDERS 1. For the reasons described above, the tenant has been successful on establishing a claim against the landlord for the net amount of $393.65, and for recovery of the bond. 2. I therefore make the following orders: 1. the respondent landlord, Paul Reilly of c/- TPD Real Estate, XXX, Coogee NSW 2034 Australia, must pay to the applicant tenant, Nadine Taylor of XXX, Queens Park NSW 2034 Australia the net amount of $393.65 immediately. 2. The Rental Bond Service is directed to pay the whole of rental bond number XXX to the applicant tenant. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 September 2021