Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Waters v RSK Custodians Pty Ltd [2023] NSWCATAP 293 Hearing dates: 18 October 2023 Date of orders: 02 November 2023 Decision date: 02 November 2023 Jurisdiction: Appeal Panel Before: S Westgarth, Deputy President D Ziegler, Senior Member Decision: Appeal dismissed. Catchwords: Appeal – tenant's application alleging noise in apartment constituting a breach by the landlord of landlord's obligations under the Residential Tenancies Act 2010 (NSW) – errors by Tribunal in rejecting tenant's applications under ss 44 and 45 of the Residential Tenancies Act 2010 – errors of no consequence - Tribunal considered tenant's evidence in the context of a potential breach of s 52 – failure by tenant to discharge onus of proof Legislation Cited: Residential Tenancies Act 2010 (NSW) Cases Cited: Blanch v British American Tobacco Australia Services Ltd [2005] NSWSC 241 Texts Cited: Not applicable Category: Principal judgment Parties: Rachel Lee Ave Waters (Appellant) RSK Custodians Pty Ltd (Respondent) Representation: Appellant: in person Respondent: C Harvie (property manager for Respondent) File Number(s): 2023/00265459 Publication restriction: Nil Decision under appeal Court or tribunal: New South Wales Civil & Administrative Tribunal Jurisdiction: Consumer & Commercial Division Citation: [2023] NSWCATCD Date of Decision: 4 August 2023 Before: P Thew (General Member) File Number(s): RT 22/51555 REASONS FOR DECISION Background 1. On 21 November 2022, the Appellant lodged an application in the Tribunal for certain orders under the Residential Tenancies Act 2010 (NSW) ("the RT Act"). The Appellant had entered into a residential tenancy agreement, as tenant, with the Respondent to this appeal, the landlord. 2. By the application, the Appellant sought the following orders (expressed in summary form): 1. An order under s 44(1)(b) of the RT Act that the rent payable is excessive due to reduction or withdrawal of goods, services or facilities. 2. An order under s 45 to reduce the rent payable when the premises are unusable, uninhabitable or destroyed. 3. An order under s 65(1)(a) that the landlord carry out repairs. 4. An order under s 65(1)(b) that the landlord reimburse the tenant with an amount for urgent repairs carried out by the tenant in the sum of $500. 5. An order under s 65(5) for an order that all or part of the rent payable be paid into the Tribunal until repairs are carried out. 1. The essence of the Appellant's case, as described in the application, was that from March 2022, she could hear a high-pitched frequency noise inside her apartment that had been rented from the Respondent. Approximately five months later, in August, the sound started again making sleeping in the apartment impossible, and causing tinnitus and headaches. 2. The Appellant's application was heard by the Tribunal on 16 March 2023 and 24 April 2023. The decision of the Tribunal was delivered on 4 August 2023 and is the decision which is the subject of this appeal (which we will refer to as "the Decision"). Summary of Decision 1. At [3], the Decision noted that the Appellant had given vacant possession of the tenanted premises (an apartment in a strata block) on 16 December 2022 and was now claiming $7,551.81 from the Respondent. 2. At [7], the Tribunal noted that the Appellant had filed some material on 13 March 2023 but had not served that material upon the Respondent until the morning of the hearing on 16 March 2023. The Respondent objected to receipt of that material and the Appellant is recorded as having said "okay, its neither here nor there". The Decision records that the Tribunal ruled that the material filed by the Appellant on 13 March not be admitted into evidence. 3. During the hearing of the appeal, the Appellant sought to rely on an email from Sandy Levin (the occupant of a neighbouring apartment). That email was part of the evidence rejected by the Tribunal and the Respondent maintained its objection. We do not think that email should be considered in the context of this appeal. It was not considered by the member at first instance and the Appellant did not ask the Tribunal to review that decision. Given that the Appellant appears to have been content to accept the Member's decision to reject that evidence and that she did not seek to have the member reconsider it (in the light of the fact that the hearing continued on 24 April 2023), we think it fair to the Respondent that it continue to be excluded from consideration. To allow that evidence in this appeal would require us to permit the Respondent to tender evidence intended to contradict the Appellant's late evidence. The result would be inconsistent with the tribunal's obligation to resolve disputes quickly and cheaply. 4. From [10], the Tribunal set out the evidence in support of the Appellant's case. That evidence may be summarised as follows: 1. In about early March 2022, the Appellant started to hear a high-pitched frequency noise in her apartment and she sent an email to "Strata Management" reporting a "very apparent Electro-Magnetic Frequency that I can hear in the apartment building". 2. There were further email exchanges throughout March 2022 concerning the need for the issue to be the subject of investigation and inspection. A company called Olympic Electrical was engaged by Strata Management to investigate the issue. Additionally, Strata Management also engaged a company called King Kong Electrical. 3. The Appellant, having earlier indicated a wish to vacate the premises, expressed the desire in an email of 26 March 2022 to the Respondent that she wished to stay in the apartment until the end of the tenancy and tolerate the sound. 4. The evidence indicates that there was no further issue from April 2022 until 27 August 2022. Meanwhile, in April 2022, Strata Management also engaged a company called Frigcorp Building Technologies to investigate. 5. The Appellant's evidence was that on 27 August 2022, the noise started again. The Appellant engaged Walter Krechkin of Consultant Electrical Engineers to inspect the apartment and provide a report. He provided an email report dated 22 September 2022. He also gave oral evidence at the hearing on 16 March 2023. 6. Strata Management arranged investigations by Rahnch Constructions Pty Ltd and they provided a report via email dated 8 September 2022. 1. From [11], the Tribunal dealt with the law applicable to the Appellant's application. 2. At [12], the Tribunal recorded that the Appellant relied upon ss 44(1)(b) and 45 of the RT Act. The Tribunal held that s 44(1)(b) applies only in relation to an existing or proposed residential tenancy agreement and, in this case, the tenancy agreement came to an end on 16 December 2022. The Tribunal also held that s 45 applies only where there has been a rent abatement under s 43(2) and that there has been no rent abatement in this case. 3. The Tribunal then set out s 52 of the RT Act which requires a landlord to provide residential premises in a reasonable state of cleanliness and fit for habitation by the tenant. The Tribunal considered a landlord's obligations under s 52(1) and thereafter proceeded to consider whether the Respondent had provided the premises in a reasonable state of cleanliness and fit for habitation by the tenant. 4. At [23], the Tribunal found that the Appellant had not persuaded the Tribunal on the balance of probabilities that the apartment was not fit for habitation. There was no allegation in respect of cleanliness. 5. From [24], the Tribunal considered the relevant evidence which may be summarised as follows: 1. On 16 March 2022, Olympic Electrical found that the high-pitched noise that they detected was located outside the Appellant's apartment rather than in it. 2. On 29 March 2022, Frigcorp attending the carpark and considered a fan that has been noisy. It found that the noise from the fan had "almost gone". 1. At [24], the Tribunal noted that the Appellant had indicated that she wanted to stay in the premises and on 28 July 2022 had entered into a new 12-month fixed-term residential agreement with an increase in rent. 2. At [27], the Tribunal noted that Rhanch Constructions inspected the premises on 8 September 2022 and said that they did not hear a high-pitched frequency sound. They repeated this view in an email dated 8 December 2022. A Mr Monk had inspected the Appellant's apartment and also said that he did not hear a high-frequency sound. 3. At [10(35),(36)] and [28], the Tribunal described the evidence of Mr Krechkin who gave evidence for the Appellant. The Tribunal recorded that his report contained measures of the "electrical field in various parts of the apartment". The report contains a statement that the Wi-Fi in the lounge room next to the sofa when switched on for 2 to 3 hours may impact on sleeping pattern and general well-being. At [36] the Tribunal summarised the oral evidence given by Mr Krechkin during the hearing on 16 March. Mr Krechkin said that when the Wi-Fi was turned off the frequency (which we infer means the electromagnetic frequency) was "pretty low" but when the Wi-Fi was turned on it was "very high". Mr Krechkin also said that the noise was "coming from the bedroom" and "could" be caused by "cables running through the wall, ceiling or floor". 4. At [10(40)] the Tribunal recorded the evidence of Rahnch Constructions to the effect that by email dated 8 December 2022, the representative of that company said that he had inspected the apartment on 8 September 2022 and that "no sound was audible to me". 5. From [11] the Tribunal dealt with aspects of the applicable law concerning the Appellant's applications under ss 44(1)(b) and 45 of the RT Act. The Tribunal noted that the Appellant had withdrawn her reliance upon s 65. 6. With respect to s 44(1)(b) the Tribunal stated that that section only applies in relation to an existing or proposed residential tenancy agreement and that, as this residential tenancy ended on 16 December 2022 (when the Appellant gave vacant possession) the section was not available to assist the Appellant. 7. We are of the opinion that the Tribunal erred in so finding but we are also of the opinion that the error is of no consequence. Section 44(1)(b) provides that the Tribunal may, on the application of a tenant make an order that rent "under an existing or proposed residential tenancy agreement" is excessive having regard to the reduction or withdrawal by the landlord of any goods, services or facilities. Section 44(3) provides that a tenant may "before the end of a tenancy", make an application that the rent is excessive having regard to the reduction or withdrawal of any goods, services or facilities. In this case, the Appellant made the application before the end of the tenancy. The application was made on 21 November 2022 and the tenancy expired approximately a month later. The language of s 44(1)(b) to the effect that an order may be made that "rent payable under an existing or proposed residential tenancy agreement" refers to the basis for the tenant's obligation to pay rent – that is, the tenant is obliged to pay rent under an existing residential tenancy agreement or a proposed residential tenancy agreement. It is clear that an application may be made before the end of the tenancy agreement, and that it cannot be made after the end of the agreement. The fact that the Tribunal might make an order later, at which time the tenancy agreement has expired, means that the Tribunal's order affects the rent that had been paid under the expired residential tenancy agreement or was due for payment under such agreement. 8. In this case the error is of no consequence because the Appellant did not expressly argue that there had been a reduction in goods, services or facilities. The allegations of the tenant were, in our opinion, adequately considered by reference to the obligations imposed upon the landlord under s 52 of the RT Act. The Tribunal considered the tenant's allegations by reference to that section and no injustice has been incurred because of the Tribunal's approach to the tenant's allegations. 9. With respect to the Appellant's reliance upon s 45 of the RT Act, the Tribunal stated at [12] that that section only applies where there has been a rent abatement under s 43(2). The Tribunal found that there had been no rent abatement and we infer that, for that reason, the Tribunal declined to consider s 45. 10. Section 45 provides that 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 s 43(2). In our view, an application under s 45 requires the Tribunal to consider whether rent should be abated under s 43(2). Section 43(2) relevantly provides that rent payable abates if the premises become wholly or partly uninhabitable otherwise than as a result of a breach of an agreement. The section deals with other causes of potential abatement but the issue relevant to the Appellant's application is whether the premises became "wholly or partly uninhabitable". 11. In our view, the Tribunal ought to have considered whether the Appellant's allegations permitted the Tribunal to find that the premises had become wholly or partly uninhabitable otherwise than as a result of a breach of an agreement and, if so, whether an order under s 45 should have been made. In our view, the Tribunal erred in not considering the tenant's allegations by reference to ss 43(2) and 45. 12. However, in our view, the Tribunal's error is of no consequence. That is because the Tribunal considered the Appellant's allegations by reference to s 52. Section 52 provides that a landlord must provide residential premises in a reasonable state of cleanliness and fit for habitation. In our view, in the circumstances of this case, the Tribunal's consideration of the evidence by reference to the obligation in s 52 adequately dealt with the tenant's allegations had they been considered under ss 44(1)(b), 43(2) and 45. 13. A further reason that the Tribunal's error was of no consequence is that the Tribunal found that the Appellant's evidence did not discharge the tenant's onus of proof. In other words, the Appellant failed to prove that the landlord had breached its obligations or that the premises were wholly or partly uninhabitable and, in our view, that failure would have equally occurred had the Tribunal considered the Appellant's allegations under ss 44(1)(b), 43(2) and 45. 14. From [23], the Tribunal made a number of findings of fact. Firstly, the Tribunal found that the Respondent provided the premises in a reasonable state of cleanliness and fit for habitation by the Appellant. The Tribunal found that, on the balance of probabilities, the Appellant had not persuaded the Tribunal that the apartment was not fit for habitation. 15. The Tribunal referred to the opinion of Olympic Electrical which found that the high-pitched noise that they detected was louder outside the Appellant's apartment than in it. The Tribunal referred to the evidence of Frigcorp concerning noise from a fan in the carpark and the Tribunal found that the carpark was many levels below the apartment and that the sound in the apartment from the fan would have been negligible. The Tribunal also referred to the evidence of Rahnch Constructions to the effect that on 8 September 2022 they and a Mr Mok did not hear a high-pitched frequency sound. 16. At [28], the Tribunal found that the evidence of Mr Krechkin to the effect that when the Appellant's Wi-Fi was turned off the frequency was "pretty low" and when the Wi-Fi was on it was "very high" as indicating that the frequency in the apartment was caused by the Appellant's own appliances or the use of the Wi‑Fi rather than by any issue with the apartment itself. The Tribunal referred to Mr Krechkin's evidence, given orally, to the effect that wiring or cabling through the floors, walls or ceilings could have been the cause of any particular high-frequency noise and found that that evidence was not supported by any finding and was not a finding that he had included in his report. 17. At [30], the Tribunal found that the Appellant "seemed to embellish her evidence" and in coming to that finding the Tribunal was clearly influenced by the fact that the Appellant had sent to the Respondent's representative a copy of Mr Krechkin's written report but with portions of it deleted, namely portions referring to the frequency reading being higher when the Wi-Fi was switched on. 18. The Tribunal found that "Overall" the evidence does not establish that the apartment was not fit for habitation by the Appellant. Notice of Appeal 1. The Appellant's lodged a Notice of Appeal on 18 August 2023 and the grounds of appeal may be summarised as follows: 1. The Tribunal took into account irrelevant considerations in determining that an order under s 44(1)(b) could not be made due to the Appellant vacating the premises on 16 December 2022. 2. The Tribunal erred in determining that an order under s 45 of the RT Act could not be made because the Respondent had refused to abate the rent and that therefore there was no rent abatement as required by s 43(2). 1. We have already stated that, in our view, the Tribunal did err in its consideration of the sections of the RT Act referred to in grounds 1 and 2 but we have also stated that we are of the opinion that the errors in that regard did not affect the outcome. This was because the Tribunal dealt with the Appellant's evidence and had regard to whether that evidence established a breach of s 52 of the RT Act. 2. The Notice of Appeal also sought to appeal upon the basis that leave should be granted because the Tribunal erred in that its decision was against the weight of evidence. The Appellant submitted that the result was a substantial miscarriage of justice. Further, the Notice of Appeal sought leave on the basis that the Decision was not fair and equitable. 3. The Respondent filed a Reply to Appeal opposing the appeal. Appellant's Submissions 1. The Appellant's submissions concentrated on the evidence in support of the Appellant's contentions. This included the Appellant's evidence that from 27 August the "noise and frequency" started again and that it fluctuated daily. The Appellant also referred to evidence of her ill health which included tinnitus, headaches and hair loss. The Appellant contended that Mr Kretchkin refuted the claim that the Wi-Fi and bedside lamp was the cause of the noise and that he had stated that the cause was in fact the wiring in the building complex. The Appellant's evidence also referred to assertions that the building complex had an array of defects which involved water leaks and cracks in the building. 2. The Appellant's submissions included an extract of the transcript of the hearing on "30 March 2023". We take this to be a typographical error as there was no hearing on that date. The extract provided reveals that the member asked Mr Kretchkin whether the high-level frequency noise that the Appellant could hear was caused by a "UW per square metre?". Mr Kretchkin replied that he thought "it was coming from the bedroom, in my opinion, it was some sort of electromagnetic radiation, the electromagnetic field being produced by the electrical cables. The signal does not stop at the door in the bedroom". The Appellant also sought to rely upon the email from the neighbour dated 13 December 2022 in which the neighbour reports a "continuous humming noise in the lounge dining room area" presumably of their unit (unit 9)". This email was in the bundle of evidence that the Tribunal had rejected. In our view had it been considered it would not have been likely to alter the Tribunal's conclusion. That is because it does not assist in identifying the cause of the noise. Respondent's Submissions 1. The Respondent referred to the evidence concerning the attempts made by various experts on behalf of the Owners Corporation to investigate the Appellant's concerns. The Respondent referred to the report of Olympic Electrical dated 16 March 2022 in which they refer to a high-pitched sound described as "not an EMF issue but a faulty exhaust fan issue" located in the basement. We were also taken to the report of King Kong Electrical dated 22 March 2022 in which it is stated that an inspection occurred to see if an exhaust fan in the basement had been the cause of high-pitched noise. The report states that the technician did not believe that the fan was causing the sound. There was also the report of Frigcorp dated 29 March 2022, which described a fan as a "little bit noisy". It described in brief terms work that was done and that the "EMF noise had almost gone". There was also an email dated 8 December 2022 from Rahnch Constructions in which the author stated that he had inspected the apartment on 8 September 2022 and that there was no audible sound. In short, the Respondent's submission was that the evidence did not demonstrate that the Appellant's unit was affected by noise for which the Respondent was responsible. Consideration 1. The Tribunal chose to consider whether the Appellant's evidence supported the conclusion that, by reason of the alleged noise, the unit was not fit for habitation and whether the landlord had thereby breached obligations imposed upon the landlord under s 52 of the RT Act. In our view, the evidence was equivocal. There was evidence that the noise may have been caused by the Appellant's Wi-Fi. On the other hand, there was evidence from the Appellant that if the Wi-Fi was off there was no noise. The Appellant's expert said that the noise in those circumstances could have been caused by wiring or cabling within the building but that opinion was not supported by any finding of any deficiencies in the wiring or cabling. The Tribunal was, in our opinion, entitled to doubt the persuasiveness of Mr Kretchkin's opinion for that reason. The Tribunal also doubted the persuasiveness of Mr Kretchkin's opinion on the basis that he had not in his written report, included any opinion as to the state of the wiring or cabling as a contributing cause of the noise. 2. The other evidence relevant to the potential source of the noise came from Olympic Electrical and King Kong and the thrust of those reports was that the potential cause of noise had been addressed in March 2022. 3. It is a fundamental principle of the law that an applicant making a case against another party (in this case a tenant alleging breaches of obligations owed by the landlord and alleging that rent had abated because the premises had become wholly or partly uninhabitable) has the onus of providing evidence which establishes his or her case "on the balance of probabilities". In this case the tenant was required to establish either that the cause of the problem (in this case noise) was occasioned by a cause for which the Respondent bore some responsibility or that the noise, even if not caused by a breach of the residential tenancy agreement, had rendered the premises wholly or partly uninhabitable. It was open on the evidence for the Tribunal to have found that the evidence was not persuasive in that regard and that the Appellant had not provided evidence which would have enabled the Tribunal to conclude that there was a breach by the Respondent of its obligations to the Appellant or that the premises had become, otherwise than as a result of a breach of the agreement, wholly or partly uninhabitable justifying an order under s45. That section provides that if the rent abates under s43(2) the tribunal "may" make an order determining the amount of rent payable. To the extent that there was evidence that the premises became partly uninhabitable (which evidence was weak at best) it was open on the evidence for the Tribunal to conclude that this was caused by the Appellant's own appliances or Wi Fi, with the consequence that the Tribunal would have properly declined to exercise its discretion to order an abatement of rent. 4. In Blanch v British American Tobacco Australia Services Ltd [2005] NSWSC 241 the court expressed the fundamental principle referred to above thus: "A party who seeks relief has the burden of satisfying the court of facts which (in the absence of other facts) would justify the grant of that relief". The Tribunal found that the evidence did not justify the orders sought by the Appellant. In our view that conclusion was open on the evidence and there is no basis to grant leave to appeal. 5. Accordingly, in our view, in the manner that the Tribunal approached the application, there has been no error and, as stated above, the conclusions that the Tribunal reached with respect to the evidence was open and available to be made. 6. Had the Tribunal considered the Appellant's application by reference to ss 44 and 45 of the RT Act the result, as we have said earlier, would have been the same, namely that the Appellant's application would have been dismissed. The evidence did not demonstrate that there had been a reduction or withdrawal of goods, services or facilities. Nor did the evidence demonstrate that the premises had become wholly or partly uninhabitable justifying an abatement of rent under s45. 7. It follows that, in our view, the appeal must be dismissed. 8. Accordingly, we make the following order: 1. Appeal 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: 02 November 2023