Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Mania v NSW Land and Housing Corporation [2022] NSWCATAP 376 Hearing dates: 9 August 2022 Date of orders: 8 December 2022 Decision date: 08 December 2022 Jurisdiction: Appeal Panel Before: M Harrowell, Deputy President G Burton SC, Senior Member Decision: 1. Leave is given in proceedings SH 22/09680 for the applicant (Ms Mania) to renew proceedings SH 21/39946. 2. Leave to appeal is refused and the appeal is dismissed. Catchwords: LANDLORD AND TENANT – Order to carry out repairs – form of order in the nature of a mandatory injunction PRACTICE AND PROCEDURE – Renewal of proceedings – Sch 4 cl 8 to Civil and Administrative Tribunal Act 2013 – requirement for leave – meaning of "other appropriate order" – power to vary time to comply with order Legislation Cited: Civil and Administrative Tribunal Act, 2013 (NSW) Civil and Administrative Tribunal Rules, 2014 (NSW) Consumer Trader and Tenancy Tribunal Act 2001 (NSW) (repealed) Residential Tenancies Act 2010 (NSW) Cases Cited: Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 Blessed Sydney Constructions Pty Ltd v Vasudevan [2018] NSWCATAP 98 Collins v Urban [2014] NSWCATAP 17 Glenquarry Park Investments Pty Ltd v Hegyesi [2019] NSWSC 425 Johnson v Dibbin; Gatsby v Gatsby [2018] NSWCATAP 45 Larking v Great Western (Nepean) Gravel Ltd (in Liq) [1940] HCA 37; (1940) 64 CLR 22 von Reisner v State of NSW [2010] NSWSC 1356 Texts Cited: Nil Category: Principal judgment Parties: Liz Mania (Appellant) NSW Land and Housing Corporation (Respondent) Representation: Solicitors: Self-represented (Appellant) Legal, Department of Communities and Justice (Respondent) File Number(s): 2022/00165901 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal of New South Wales Jurisdiction: Consumer and Commercial Division Citation: Not applicable Date of Decision: 18 May 2022 Before: D Ash, General Member File Number(s): SH 22/09680 reasons for decision Introduction 1. This appeal relates to renewal application SH 22/09680 (renewal application) made under Sch 4 cl 8 to the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). The applicant is the appellant, Ms Mania, who is a tenant under a residential tenancy agreement with the respondent. 2. Schedule 4 cl 8 permits a party, in whose favour an order has been made, to renew proceedings if an order of the Tribunal is not complied with within the time specified in the order. Leave is required to renew proceedings. 3. The orders to which the renewal application relates were made on 13 December 2021 (December orders) in application SH 21/39946 (original application). Those proceedings had been brought by the appellant. The December orders are as follows: 1. By consent, the Tribunal orders that the respondent(s): NSW LAND AND HOUSING CORPORATION … is to carry out the following work on or before 10-Mar-2022 in a proper and workmanlike manner. Details of Work order: 1. fix the hole in the kitchen wall (the landlord says this has been done in accordance with order 1 of 8 January 2021, but the tenant says this is still not complete). 2. replace carpet in all rooms. 3. repair the cracked cement sub-floor under the carpet/relay new subfloor 4. repair/replace faulty stove. 5. repair/replace front door - frame is cracked, deadlock is not aligned and security screen door has insufficient room. 6. repair/replace front window in bedroom 1 which is falling in (needs resealing). 7. repair window in lounge. 8. fix/replace leaking and cracked toilet (plumber came last week to replace washers but still not fixed). The tenant says the toilet is too [low]. 9. relocate vanity that is behind the door and prevents door from being opened. 10. fix faulty electrics. 11. fix door handles. 2. By consent, on or before 10 January 2022, the respondent is to inspect unit 9 directly above the tenant's unit to determine if carpet is necessary in unit 9 to eradicate the noise which is interfering with the tenant's enjoyment of her own premises. 2A. The respondent is to provide to the tenant the results of the inspection by 17 Jan 2022. 3. By consent, the respondent is to relocate the tenant to one bedroom temporary accommodation in Bondi. The accommodation is to be dog friendly and have an outside area for the tenant's dog. The respondent is to pay for the cost of the temporary accommodation. 3A. The re-location in order 3 is to take place on or before 10 January 2022. 4. By consent, the respondent is to arrange for all of the tenant's furniture, goods and possessions in the premises to be packed, moved and stored at a storage facility, at the respondent's cost. The name on the storage facility units is to be the tenant's. 4A. The packing, transportation and storage in order 4 is to take place on or before 10 January 2022. 5. By consent, the rent shall not exceed $75.64 from today until all the repairs in order 1 have been completed. 1. The December orders not the subject of this appeal. 2. In the renewal application, the appellant sought renewal in respect of all the December orders. Under the heading "How have the orders not been complied with?" the appellant said: Order # 1, items 1-11-The repairs have either not been done at or severely compromised. I spoke to building inspector … on Monday who attended the property and confirmed this. I have not seen the property and do not have keys either. 1) 1. Hole in kitchen wall - previous repair work hasn't been reopened or repaired properly. A microwave cupboard has been installed over the top instead. Behind this microwave cupboard is the area which has been saturated with water leaks and posed a constant electrical threat. The melamine wood boards, (which I supplied) have not been removed, they are the wrong size and were only placed in position to prevent the crumbling brick work from being a constant health risk in a food preparation area. 1. In the documents attached to the renewal application, the appellant continued to set out the respects in which she said the December orders had not been complied. There she said in respect of work order items 2-11: D2. Carpet replacement – it has been confirmed the front room has been finished but I am unaware of the remaining rooms' condition. D3. Subfloor – this was neither confirmed nor discussed at all. I would like details of what work was done to correct the subfloor. Photographs and proof this has been done are required. D4. Stove replacement - this has not been confirmed. The current stove has a faulty grill-control knob and is very dangerous. D5. Front door – this has not been done. The inspector has confirmed he had trouble locking the door. The front door has never been reliable, regardless of 'appearing' secure (when it's not). D6. Bedroom window – unknown. D7. Lounge window – unknown. D8. Toilet replacement – not done. The same toilet remains. It has a hairline fracture and leaks intermittently and is the wrong height for me to use. It causes my physical disability to become more painful and is too hard for me to use. D9. Bathroom vanity – the inspector has informed me it has been done but I have not seen it. D10. Electrics – I believe nothing has been done, the inspector said nothing. If they did not understand the problem, how could they fix it? The area around the hole in the kitchen wall has had water leaking into the electrics for a very long time. Power points spark intermittently, I have been electrocuted twice. I believe no investigation has happened. The roof has had major work going on and the building flooded a few weeks ago (again). D11. Door handles – unknown. 1. In respect of orders 2-5 of the December orders the appellants said: Order No. 2 + 2a – upstairs flooring and excessive noise – nothing has been done. I have not received any report and the situation remains the same. I cannot live below this nightmare and the tenants now have an extra baby. The situation needs to change urgently. Order No. 3 – temporary accommodation – this has been paid to the 10th March 2022, after which I have nowhere to live and will be forced to live on the street. Order No. 4 – storage of my goods – currently, this is not paid and my goods are at risk of being auctioned by the storage facility. This is unacceptable and threatens my existence. Order No. 5 – rent – the landlord had a locksmith attend on the 11th January to change the locks. This was unnecessary and I gave the locksmith my keys to save the expense. I still don't understand why they did this but I disconnected my gas and electricity immediately. I have received an email from the landlord recently which states I am expected to pay $5/week for 3 months, beginning the 10th January. No one has discussed anything with me. 1. The renewal application was determined on 18 May 2022. The Tribunal made the following orders and notations (May decision): 1 Time for compliance with Order 1.1 made on 13 December 2021 in SH21/39946 is extended to 13 July 2022. NOTE: a The Tribunal is satisfied that orders 1.2 to 2A have been complied with. b Today's hearing of the tenant's renewal application was not a hearing in relation to any alleged non-compliance with orders 3 to 4A. c For the avoidance of doubt the last order being order 5 remains in place. 2 By Determination of member, on 18 May 2022 the hearing was adjourned to a date to be fixed by the Registrar, for directions only. 1. The Tribunal provided written reasons for its decision (May Reasons). 2. The appellant appeals the May decision. Notice of Appeal and hearing 1. The Notice of Appeal was filed 7 June 2022. It was filed out of time. 2. Despite initial opposition from the respondent to extend time to lodge the appeal to 7 June 2022, we did so at the hearing of the appeal on 9 August 2022. This was because the delay in lodging the appeal was relatively short, the appellant had been seeking advice and had not been well and the respondent could not point to any prejudice to it that would warrant refusal of an order extending time. 3. In section 5C of the Notice of Appeal the appellant sought the following orders: • The orders challenged on appeal be set aside • The matter be remitted to the Tribunal for determination according to law. 1. However, the Notice of Appeal did not identify the orders challenged on appeal in Section 5A. Rather, the appellant provided a narrative in respect of the May Reasons, expressing disagreement with what the Tribunal said and providing submissions concerning the events which had occurred. 2. Under the heading Grounds of Appeal - section 5B of the Notice of Appeal, the appellant provided a narrative of what she said were errors of the Tribunal by reference to the May Reasons. 3. At the hearing of the appeal, we asked the appellant to identify what orders she said should be made if the proceedings were remitted. In this regard, it is open to the Appeal Panel, in determining this appeal, to re-exercise the powers of the Tribunal if error is established: NCAT Act s 81(2). 1. In respect of the items in the work order (order 1) the appellant said: 1. the order in respect of items 1-3 (fix hole in kitchen wall, replace carpet and repair cracks cement in sub floor and relay carpet) should be remade. The appellant said this work had not been carried out; 2. in respect of item 4, the knob on the grill of the stove "starts at high and turns to low" and should operate the other way. That is, it should start from low and turn to high. In saying so, the appellant said the knob did operate as marked; 3. in respect of item 5, front door frame repairs etc, there was no issue, the appellant accepting this work had been done; 4. in respect of items 6-8 (repair/replace front window in bedroom 1, repair window in lounge and fix/replace leaking cracked toilet), these orders should be remade as the work has not been done; 5. in respect of item 9 (relocate vanity), no claim was made, the appellant accepting this work had been done; 6. in respect of item 10 (fix faulty electrics), the appellant wants various power points rechecked. She says there is water in the power points; and 7. in respect of item 11 (fix door handles), this work was done. 1. in respect of order 2 and order 2A (noise from premises above), the appellant says this order should be remade; 2. in respect of orders 3, 3A, 4 and 4A the appellant accepted that these matters were still to be dealt with by the Tribunal as recorded in the May decision. 1. In relation to the nature of renewal proceedings and what orders the Tribunal could make, the appellant's attention was drawn to the decision of the Appeal Panel in Blessed Sydney Constructions Pty Ltd v Vasudevan [2018] NSWCATAP 98 (Blessed). This decision and the fact the appellant sought the remaking of the same orders as the December orders became the subject of discussion at the hearing of the appeal, it appearing to the Appeal Panel the renewal application may be misconceived. Further written submissions were permitted to be filed and served on this topic after the hearing of the appeal concluded. We will return to this matter below. 2. The respondent filed a Reply to Appeal dated 24 June 2022. In Section 3B the respondent said: 1. The Appellant has failed to correctly identify a question of law or fact, and in any event requires leave to appeal against the Tribunal's interlocutory decision (s80(2)(a) Civil and Administrative Tribunal Act 2013). No proper basis for leave has been identified. 2. It is not enough that the Appellant disagrees with the weight the Tribunal gave to evidence before it or that the Tribunal's order preferred the Appellant's evidence (see Landlord's Brief of Evidence attached). 3. The Tribunal's reasoning, read fairly and as a whole, demonstrates that it considered the evidence before it and reached a conclusion open to it on the available evidence (see Reasons). 1. Leave to appeal was opposed. The appellant said it did not "concede that any factual errors were made or that the decision was against the weight of evidence". The respondent also said the requirements of Collins v Urban [2014] NSWCATAP 17 (Collins) were not satisfied for the purpose of granting leave. Consideration Nature of appeal and need for leave 1. The first matter to deal with briefly is the respondent's assertion in its Reply to Appeal that the Tribunal's determination of the renewal application was an interlocutory decision. 2. This issue was not pursued in the appeal, the respondent accepting in its submissions dated 2 August 2022 that it was an internal appeal as provided by s 80(2)(b) of the NCAT Act. Rather, the position finally adopted by respondent was that only the procedural fairness ground raised by the appellant (which related to not being heard on her compensation claim) was a question of law and all other challenges required leave, the grant of which is regulated by Sch 4 cl 12(1) to the NCAT Act and the principles in Collins. Having regard to the definition of "interlocutory decision" in s 4 of the NCAT Act, this concession appears correct. Renewal proceedings and whether properly brought 1. The second matter to deal with is the issue we raised above, namely, whether the renewal application was properly brought - at least in respect of the work order. About this matter the parties provided supplementary written submissions following the hearing of the appeal. Submissions 1. The appellant's submissions can be summarized as follows: 1. The ability to renew proceedings and the extent of the order making power should be construed widely. 2. The expression "other" in Sch 4 cl 8(4), which permits the Tribunal to make "any other appropriate order", should not be given a narrow or restrictive meaning. "The general purpose of the clause is to allow a party who says that orders have not been complied with access to a relatively cheap and quick process to have that non-compliance addressed". 3. To the extent the decision of the Appeal Panel in Blessed takes a more restrictive approach, that decision should not be followed. 4. As to that part of the application dealing with repair orders, the appellant said: In my view, the Appeal Panel should decide that my request for further repair orders was: 1. Within the power of the Tribunal to make under clause 8 as it could make the same orders as those requested in the original proceedings; or in the alternative 2. That my request for orders with new dates for repair constituted a request for "other" orders within the meaning of the clause. 1. Further, and in any event, the renewal application also sought "various amounts of money by way of rent and compensation". 2. Otherwise, s 188 of the Residential Tenancies Act 2010 (NSW) (RT Act) provides power to vary existing orders. 1. In reply, the respondent said: 1. Leave was required under Sch 4 cl 8(1) to the NCAT Act. No leave had been granted in the December orders the subject of the renewal application, or at the hearing of the renewal application. Consequently, the condition precedent to the renewal application had not been satisfied. 2. Having made this submission, the respondent accepted that the Appeal Panel could retrospectively validate the hearing at first instance under s53(3) of the NCAT Act, the decision being an irregularity that does not nullify the hearing orders made. In this regard the respondent said the objects of the NCAT Act favoured the Appeal Panel now exercising these powers. 3. As to the decision in Blessed the respondent said that it does not apply in these circumstances. Rather, the issue raised by the Appeal Panel concerned Sch 4 cl 8(1), namely, the requirement for leave. 4. In any event, the appellant lost the renewal application and wishes to bring a second renewal hearing before the Appeal Panel. She should not be permitted to do so. The appellant had an opportunity to submit relevant evidence. She had an opportunity to re-enter the premises "and did not do so because she refused since early March 2022". In short she should not be permitted to call new evidence and relitigate a dispute. The evidence she now wishes to call was evidence reasonably available at the time of the original hearing on 18 May 2022. 5. As to s 188 of the RT Act, this section cannot be used "to cure the absence of a renewal order". Analysis 1. Renewal proceedings are a means of enforcing and promoting timely compliance with Tribunal orders: Blessed at [26] agreeing with the Appeal Panel decision in Johnson v Dibbin; Gatsby v Gatsby [2018] NSWCATAP 45 at [83]. 2. The nature of renewal proceedings being for the purpose of enforcement is supported by the decision of the Supreme Court of New South Wales in von Reisner v State of NSW [2010] NSWSC 1356 (von Reisner). That case dealt with s 43 of the now repealed Consumer Trader and Tenancy Tribunal Act 2001 (NSW) which was in the same terms as Sch 4 cl(8) save that the heading of s 43 was "Enforcement of certain Tribunal orders". In von Reisner, Ball J said at [24]: The Consumer, Trader and Tenancy Tribunal Act 2001 (CTTT Act) provides its own mechanism for enforcement of orders made by the CTTT. If a party has obtained an order in the CTTT and the order is not complied with, that party can apply to the CTTT to renew the proceedings (if 12 months have not expired since the order was made, leave must be obtained): CCCT Act, s 43. An order of the CTTT for payment of money can be filed in the registry of a court having jurisdiction to give judgment for a debt of the same amount as the amount stated in the certificate. That order then operates as a judgment of that court: CCT Act (sic), s 51(3). Failure to comply with an order of the CTTT is also an offence: CCT Act (sic) ss 52, 82. 1. Leave is required to bring renewal proceedings. Leave may be granted when the original orders are made or at a later time, provided that any renewal application is brought within 12 months from the end of period specified for compliance by the Tribunal: NCAT Act Sch 4 cl 8(1)-(2). 2. We accept the respondent's submissions that the Appeal Panel is able to grant that leave, even at this late stage. We propose to do so because the respondent concedes in this case such an order should be made, consistent with the objects and guiding principle in s 3(d) and s 36(1) of the NCAT Act. 3. Schedule 4 cl 8(4) provides: (4) When proceedings have been renewed in accordance with this clause, the Tribunal— (a) may make any other appropriate order under this Act or enabling legislation as it could have made when the matter was originally determined, or (b) may refuse to make such an order. 1. The meaning of the expression "other appropriate order under this Act or enabling legislation" was considered by the Appeal Panel in Blessed. Of the word "other" the Appeal Panel said at [32]: First criterion 32 The first criterion, that an order made on renewal be "other", presents little difficulty. All that is required is that the order made is different in some material respect from the order originally made that has not been complied with. 1. That is, the order made on renewal must be "different in some material respect". 2. As to the word "appropriate", the Appeal Panel in Blessed said at [33]: … Since the order is being made on a renewal application, it would be natural to construe "appropriate" as requiring the order to be fitting or suitable having regard to the purpose for which a renewal application is made, the circumstances giving rise to the renewal application and any other relevant circumstances whenever arising. … 1. The Appeal Panel then continued at [35]: … A renewal application is, however, designed to deal with a situation where there has been non-compliance with the original order that the Tribunal thought was appropriate when the matter was first determined. The circumstances will inevitably have changed since that time, if for no other reasons than because there has been non-compliance with the order that had been made. What was appropriate originally may well not be appropriate at the time of the hearing of the renewal application. To limit the orders that could be made on renewal to those that would have been appropriate when the matter was originally determined would be likely to prevent the Tribunal from doing justice between the parties, having regard to the non-compliance with the original order and to any other circumstances that had changed materially since the proceedings were originally determined. This would render the right to renew proceedings ineffective in a significant number of cases. 1. Once it is accepted that the purpose of the renewal provision is to provide a mechanism for enforcement of or timely compliance with the original orders, it seems to us that the making of the same order but for a different date neither has the effect of enforcing the original order nor ensuring the timely compliance with that order. Rather, an "other" order requiring the same work to be done but by a later date is not materially different and has the effect of relieving a party from original obligations (at least as to time) and not enforcing the original order which has not been complied with according to its terms. 2. The appellant submitted that, in so far as Blessed was authority for a narrow construction of the word "other," it should not be followed. We decline to take a different view to Blessed for two reasons. First, this interpretation has stood for a number of years. Secondly, we think the interpretation is correct. In this regard, it serves little or no purpose for the same order to be made; simply changing the date for compliance would not promote finality to proceedings. 3. Further, in so far as a date change is required, there is adequate provision to address such a need by s 41 of the NCAT Act. This section gives the Tribunal power to extend time. Also, in respect of residential tenancy proceedings, s188 of the RT Act may permit variation of the December orders. 4. Otherwise, enforcement in connection with a work order is usually achieved by making a suitable award for compensation, where such relief is available. Such an award permits the person in whose favour an order has been made to engage and pay for others to perform the required obligation sought to be enforced. 5. In making these observations, we leave for separate consideration whether a different work order could be made, for example, in circumstances where work done under the original order was defective and itself required to be rectified. 6. Otherwise, a party in whose favour an order has been made by the Tribunal must look to other means of enforcement provided in the NCAT Act or the relevant enabling legislation. The fact these other means of enforcement may be more complex is not a basis for interpreting Sch 4 cl 8 in a manner that permits other orders to be made that are not properly seen as a means of enforcing or ensuring compliance with the original orders. 7. Having regard to the above, in so far as appellant seeks to have the same work orders made on terms that the work be completed at a future date, that part of the appeal should be dismissed. The particular work orders - Items 1.1-1.11 1. At the hearing of the appeal were three items of work that the appellant said were complete. These were: 1. Item 1.5- repair/replace front door - frame is cracked, deadlock is not aligned and security screen door has insufficient room. 2. Item 1.9- relocate vanity that is behind the door and prevents door from being opened. 3. Item 1.11- fix door handles. 1. We will deal with the other items in turn. Item 1.1- fix the hole in the kitchen wall (the landlord says this has been done in accordance with order 1 of 8 January 2021, but the tenant says this is still not complete). 1. The Tribunal accepted this work had not been done. The Tribunal extended time. While it could not make such an order on renewal, it was entitled to deal with the matter as a request to extend time under s 41 of the NCAT Act or vary the order under s 188 of the RT Act: May Reasons at [5]-[7] 2. As this is the outcome sought by the appellant, no error is established. Item 1.2- replace carpet in all rooms. 1. The appellant conceded there was no evidence at the original hearing that the carpet had not been replaced. 2. However, the appellant seeks to rely on new evidence. Reference was made to the appellant's bundle at pp 356-368, particularly p 356. When asked why the evidence was not provided to the Tribunal at the hearing at first instance, the appellant said that because of her personal circumstances and medical conditions she was not able to inspect the premises prior to the hearing. In making this submission, the appellant accepted in hindsight she could have sought an order for access to inspect. 3. We are not satisfied that the evidence upon which the appellant wishes to rely is new evidence that was not reasonably available at the time the original proceedings were dealt with. We consider that leave should be refused to rely on this new evidence in this appeal: Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 at [23] and following. Further, the evidence itself is not sufficient to demonstrate that the work in question has not been done. 4. Lastly, and in any event, at the original hearing the appellant accepted that the carpet had been replaced, the real issue being with the sub-floor finish, item 1.3: see transcript at AB 269.1, time mark 10:14. 5. Consequently, this claim fails. Item 1.3- repair the cracked cement sub-floor under the carpet/relay new sub-floor 1. The Tribunal found, based on the landlord's records, that a contractor attended the site and carried out the required work. 2. As set out above, in the grounds of appeal the appellant asked questions regarding this work and seeks photographs and proof that this work has been done. At the original hearing, in answer to the Tribunal's question concerning whether there was any evidence that the work to the sub-floor had not been carried out the appellant said (AB 269 at time mark 11:35): Um, to the subfloor, I was expecting [them] to show me photographs or something, I can't access the property search, so I can only see what I can see through the windows. 1. It is clear from the above that there was no evidence before the Tribunal to support the contention made by the appellant that the work had not been done. 2. The appellant seeks to rely on photographs of the sub-floor, apparently taken after the hearing (see for example AB 357) to show the condition of the sub-floor. For the reason stated above, leave should not be granted to rely on new evidence since we are not satisfied that the evidence was not reasonably available at the time of the original hearing. 3. This aspect of the appeal fails. Item 1.4- repair/replace faulty stove. 1. In respect of this item, at [10] of the May Reasons the Tribunal found: The landlord's evidence is that the stove was tested and all elements and grills were found to be working. The tenant's case is that a knob or knobs are calibrated other than what she says is usual in that the knob/s go from "off" immediately to "high" and then gradually to "low" rather than from "off" then gradually up to "high". This, the tenant states, causes her difficulty and may be dangerous. The Tribunal is not satisfied that any difficulty or possible danger arises from a failure by the landlord to comply with its obligations under the Act or that the calibration of the nobs is a fault within the meaning of the order. The Tribunal is satisfied that the work order has been complied with. 1. The appellant says that the operation of the new stove is not normal. This appears to be based on the fact that the appellant says the new stove dials operate differently from what she expected and/or differently from the operation of the old stove that was replaced. This is conveniently illustrated by the photographs found at AB 381. 2. While these photographs constitute new evidence which should not be admitted in this appeal for the reasons stated above, treating the narrative as a submission, it is clear that the appellant's concern relates to whether, when moved from the off position to be first heat setting, the control should operate from low to high (being what she says provides safe operation) or high to low. 3. None of these submissions demonstrates any error in the Tribunal's decision. There is no evidence to suggest the manner in which the new stove operates is unsafe or that there has been non-compliance with the original order made to replace the stove. 4. The challenge fails. Item 1.6- repair/replace front window in bedroom 1 which is falling in (needs resealing). 1. The Tribunal found this work had been carried out. 2. The appellant sought to rely on new evidence found at AB 380. However, in discussions with the Appeal Panel it was conceded that this photograph was not of the window in bedroom 1, which was the subject of the Tribunal's order. 3. The appellant then continued that there were no photographs of the relevant window but it has a gap of 1 ½ inches where the wind comes in. The appellant submitted the work has never been done. 4. While the respondent conceded that the photograph at Respondent Bundle (RB) p 7 did not show the resealing work, the respondent said the appellant has not demonstrated that the work has not been done. 5. We are not satisfied the Tribunal's conclusion that the work has been done was in error. Item 1.7- repair window in lounge. 1. The Tribunal was satisfied this work has been done. 2. The appellant relied on new evidence (AB 369-372). This evidence was reasonably available at the original hearing and leave should be refused. 3. The oral evidence of the appellant at the original hearing (AB 275 time mark 27:41) is not sufficient to demonstrate the Tribunal was in error in accepting the respondent's evidence that the work was done. It is a commentary by the appellant on the respondent's evidence. However, in the absence of evidence to the contrary, the Tribunal was entitled to accept the respondent's evidence about what work was done. 4. Accordingly, his claim fails. Item 1.8- fix/replace leaking and cracked toilet (plumber came last week to replace washers but still not fixed). The tenant says the toilet is too low. 1. The Tribunal made the following findings in the May Reasons at [14]-[16]: The landlord's evidence is that there was an inspection which revealed no evidence of leaking. The tenant stated that there was a hairline fracture from which leaks occur after days. In the absence of clear evidence in support, the Tribunal declines to find that the order has not been complied with as to leaking. 15. The landlord's evidence is that "the toilet bowl may be low" but there is no acknowledgement that it is too low in the sense that the landlord accepts it has a duty to provide a higher toilet. The tenant's evidence is that medical and personal issues make a higher toilet necessary and that the situation affects her dignity. As to height, the Tribunal is not satisfied that the landlord has breached any obligation under the Act or has failed to comply with the order. The landlord indicated that the usual course for a tenant in such a position is to provide an occupational report or like material for consideration. 16. The tenant also asserted that the floor beneath the toilet is sloping and so, too, the toilet. That may be so. However, this is not reasonably within the terms of the order. 1. The appellant relies on new evidence (AB 373) to show the toilet has not been changed. 2. We understand the need to change the toilet bowl was said to arise from two matters. First, it was said the toilet bowl was leaking – we understand from alleged hairline cracks. However, there is no evidence to support this claim and the Tribunal was entitled to accept the landlord's evidence which it did. 3. Secondly, the appellant complains the toilet was too low and not suitable for her because of her disabilities. The Tribunal concluded this was not a defect. 4. We agree. 5. There was no evidence to suggest the toilet height did not comply with any relevant building standard or was in a state of disrepair. There was no provision of the residential tenancy agreement nor other agreement between the parties to which we have been referred to suggest that the height of the toilet bowl was to be adjusted to accommodate any disability of the appellant. The Tribunal noted the advice from the respondent that any disability which was required to be accommodated should be subject to occupational report to be submitted by the appellant to the respondent for its consideration. 6. Finally, the Tribunal correctly determined that the slope of the floor was not the subject of the original order. 7. Accordingly, this claim fails. Item 1.10- fix faulty electrics. 1. The Tribunal was satisfied that this work had been done. 2. The appellant said that she wants this work re-checked as there is water in the power points. Reliance was placed on the photographs of power points depicted in RB 17. Reliance was also placed on new evidence (AB 382) said to show a hole under a power point depicted in a photograph. 3. We refuse leave to rely on the new evidence for the reasons stated above. The photographs at RB 17 do not demonstrate the work required in item 1.10 has not been done. The report from Ventia dated 19 January 2022 (at RB 16) shows that a review of all electrical wiring was undertaken and various repair work undertaken as detailed. 4. The Tribunal was entitled to accept this evidence and no relevant error is shown. This claim fails. Other relief sought in renewal proceedings relating to Order 1 made 13 December 2021 1. In addition to the work orders sought on renewal, the appellant says she had claims for compensation arising from non-compliance with the work orders. 2. Such claims could properly be the subject of renewal application. However, in this case the only work order item which remains incomplete was item 1.1. 3. In respect of compensation in the form of the rent reduction, order 5 of the December orders remains in place. The amount of the rent reduction was determined by reference to all the repair items requiring completion. In the absence of evidence to demonstrate other loss to show that the amount of the rent reduction was inadequate compensation, it is difficult to see how such a claim could succeed. 4. The appellant says she was denied procedural fairness in relation to her compensation claim. However, at [24] of the May Reasons the Tribunal said: 24. There is an additional matter. The tenant flagged in her material but neither party made submissions at length about compensation. Without making any findings, it is reasonable to suppose that the tenant's position is "there was something wrong and I am entitled to compensation as well as the work orders and rent reduction I have received" and that the landlord's position is "the orders made were orders made in final settlement and in any event the rent reduction represents reasonable compensation". If this is an issue that cannot be resolved, then the parties can inform the Tribunal in due course. 1. It seems clear from this paragraph that the Tribunal did not determine the compensation claims, whether rent reduction or otherwise. Those matters were adjourned for determination on a later date and are not the subject of this appeal. Consequently, there has been no denial of procedural fairness and this matter remains to be resolved by the Tribunal at first instance if it is still an issue. Of course, any claim for compensation would need to be dealt with in the context of our conclusion concerning the work order items. Appeal re Orders 2 and 2A made 13 December 2021- inspection and report regarding noise 1. As set out above, the orders required the respondent to carry out an inspection to determine "if carpet is necessary in unit 9 to eradicate the noise which is interfering with the tenant's enjoyment of her own premises" and for the report to be provided by 17 January 2022. 2. The Tribunal said at [22]- 22] of The May Reasons: 20. By letter to the tenant dated 25 February 2022 the landlord stated "[Staff] have attended and inspected the floor of this unit. We have determined that no further action is required as there is already safety measures in place to reduce the noise." 21. The allegation of noise is of concern to the tenant. She asserts that she is wrongly the subject of an AVO from the neighbouring tenant. She asserts that the landlord has sided with that tenant. She refers to evidence including evidence on a USB stick. For the landlord's part, the representative says that she herself has inspected the premises, that there is vinyl flooring over a cement/concrete floor/ceiling, and that the neighbouring tenant has children. 22. Orders 2 and 2A were that the respondent inspect to determine and to provide the results of the inspection. The tenant complains that there is no meaningful report. However, the orders were complied with albeit some slippage as to time. If there is an ongoing issue about noise, the appropriate course is for the tenant to make a separate application in fresh proceedings. 1. Orders 2 and 2A as originally made are orders in a form lacking in precision: see Glenquarry Park Investments Pty Ltd v Hegyesi [2019] NSWSC 425 at [100] and following. 2. Although made by consent, the Tribunal was required to consider whether such an order should be made, both in terms of any jurisdictional considerations and the form of the order. As Parker J said in Glenquarry at [113]: Furthermore, the orders are in the nature of mandatory injunctions. Such orders can be enforced (indirectly, under NCAT: Civil and Administrative Tribunal Act, s 73) by way of contempt. It is unacceptable that the recipient of the order should be in any doubt as to what is required. In my view, for the Tribunal to make an order giving rise to such a doubt is itself an error of law. 1. The form of Order 2 did no more than require the respondent (or its authorised agent) to prepare a report. It provided no criteria to be considered in preparing the report (for example, by applying relevant building code standards that might be applicable to sound transmission in these types of cases) nor did it require a report to be prepared by an appropriately-qualified person. Finally, if a defect was found, it provided no directions as to what was to happen. 2. Where a proposed consent order in the nature of a mandatory injunction does not meet the requirements identified in Glenquarry, it should not be made. Rather, the Tribunal should, ordinarily: 1. assist the parties by re-formulating a consent order in a form that will adequately address the matter in dispute; 2. adjourn the claim to permit further evidence as to the form of the order; or 3. determine the claim at final hearing after affording the parties an opportunity to be heard. 1. Orders should not generally be made to require work to be performed on the basis of a report that is to be prepared in the future. Such an order is fraught with difficulties if there is non-compliance or a there is a dispute about what work the report requires. Rather, any order should be in terms that enables the parties and the Tribunal to know precisely what is required to be done so that compliance can be assessed against the specific requirements of the order. 2. Having made those observations and as order 2 of the December orders is not the subject of this appeal, we agree with the Tribunal's reasons at [20]-[22] of the May Reasons, that on the evidence before the Tribunal there was compliance with the order according to its terms. The fact that the report (RB 20), apparently prepared by staff, did not conclude there was noise which might interfere with the appellant's quiet enjoyment is not a reason to find the respondent did not comply with Orders 2 and 2A according to its terms. 3. This aspect of the appeal fails. 4. If there are further proceedings on the issue of noise, no doubt the parties will provide evidence from suitably qualified people and/or relevant sound recordings or other evidence sufficient to establish the actual noise levels, whether or not there is a breach of any obligations under the RT Act and how any breach is to be rectified. Matters not resolved by this appeal 1. In reaching the above conclusions, we note the Tribunal adjourned other aspects of the appellant's application. Save in so far as our reasons and the May decision give rise to res judicata or an issue estoppel, we make no decision on these remaining issues. 2. Finally, the obligation to carry out repairs is a continuing obligation under the residential tenancy agreement and the RT Act. This fact may give rise to a right of action in respect of any continuing breaches: Larking v Great Western (Nepean) Gravel Ltd (in Liq) [1940] HCA 37; (1940) 64 CLR 22, at 236 per Dixon J (as he then was). We make no decision about any continuing breach of the landlord's obligations on this case. Orders 1. The appellant has not established any appellable error or that leave to appeal should be granted. 2. While we might have refused leave to renew the proceedings, in light of the respondent's position set out above we shall grant that leave. In part this is justified because of the claim for compensation for non-compliance with the work orders. Further, as we said above, while we have concluded the same orders cannot be remade on renewal, the Tribunal was entitled to vary the time for the respondent to carry out order 1.1. Since this is the outcome the appellant was seeking for this item, no error is established. 3. The Appeal Panel makes the following orders: 1. Leave is given in proceedings SH 22/09680 for the applicant (Ms Mania) to renew proceedings SH 21/39946. 2. Leave to appeal is refused and the appeal is dismissed. ********** 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: 08 December 2022