Fanny Sau Ching Chan v Wie Zhang and Yi Qin Zhang [2014] NSWCATCD 9

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Fanny Sau Ching Chan v Wie Zhang and Yi Qin Zhang [2014] NSWCATCD 9 Hearing dates: 16 October 2013 Decision date: 16 January 2014 Jurisdiction: Consumer and Commercial Division Before: J Bordon, Senior Member Decision: 1 In application RT 13/38904 Wei Zhang and Yi Qin Zhang are to pay to Fanny Sau Ching Chan $923.88 within 14 days. 2 Application RT 13/47979 is dismissed. Legislation Cited: Residential Tenancies Act 2010 Category: Principal judgment Parties: Fanny Sau Ching Chan (Applicant / Cross Respondent) Wie Zhang and Yi Zhang (Respondent / Cross Applicant) File Number(s): RT 13/38904 RT13/47979

reasons for decision

THE APPLICATIONS 1In RT 13/38904 an order was sought by Fanny Sau Ching Chan (tenant) for compensation in the sum of $807.69 per week for the period 18 April 2013 to 27 May 2013, a total of $4,615.35 or, in the alternative, an order pursuant to section 45 of the Residential Tenancies Act 2010 (the Act) that the rent for the period from 18 April 2013 to 27 May 2013 be reduced or abated as the premises were wholly or partly uninhabitable. 2In addition an order for refund of rent from 28 May 2013 to 31 May 2013, a total sum of $461.52, was sought. 3The parties had entered into a Residential Tenancy Agreement on 3 July 2009 and the rent for the premises at the relevant time was $3,500.00 per calendar month payable on the first day of each month. 4On or about 18 April 2013 the Owners Corporation commenced significant building works to the building in which the premises were located. It was the tenant's evidence that she had not been informed by the landlord or by the strata manager of the work proposed by the Owners Corporation. She had first become aware of the extent of the building works when they commenced on or about on 18 April 2013. 5The evidence given by Ms Chan was that from 18 April 2013, when the building works commenced, the whole building became a work site. The building works commenced at 7:00am each weekday morning and continued to 5:00pm each day. On Saturdays they started at 8:00am and continued until 3:00pm. 6The tenant experienced significant noise from the use of power tools and significant amounts of dust which entered the premises. This required her cleaning the premises constantly including the vacuuming of the carpet and wiping down of all the areas. 7Tiles were removed from the balcony of the premises and a black plastic sheet was placed over the sliding door. This did not prevent dust from entering the premises but did prevent any use of the balcony and it interfered with the natural light. Furthermore, the windows could not be opened during the day because of the building works. 8Going in and out of the premises was dangerous and there was a loss of privacy as well as of a loss of security as the front door to the building was kept open. Particular difficulties experienced were that the tenant's daughters could not study until the end of each day because of the noise and the dust. In addition the older daughter suffered from eczema and this had been made worse. 9The tenant found new premises to move to and duly gave notice to the landlord. She vacated the premises on 27 May 2013 with rent paid to 31 May 2013. 10Mr Wei Zhang, the landlord, gave evidence. He disputed the extent of the impact that the works had on the tenant. I note, however, that he was not present at the premises. I am, therefore, persuaded that I should accept the evidence of Ms Chan in relation to the works. 11In relation to the claim for compensation, the difficulty for Ms Chan is establishing that there was a breach of the quiet enjoyment term or any other term of the Residential Tenancy Agreement by the landlord. It was the Owners Corporation which had engaged the builders to carry out rectification work to common property. The failure to notify her of the works does not result in the landlord being liable for breach of the term. 12The loss suffered in any event is in the nature of non-economic loss. In the recent decisions of Flight Centre v Denise Louw (2011) NSWSC 132 and the Court of Appeal in Insight Vacations Pty Ltd v Young (2010) NSWCA 132-137 it has been held that, grief anxiety, distress, disappointment, inconvenience and the like were subject to the provisions of the Civil Liability Act 2002. Pursuant to section 16(1) of that Act no damages may be awarded for non-economic loss unless the severity of a non-economic loss is at least 15% of a most extreme case. 13In the Flight Centre case the claim was in relation to the inconvenience, distress and disappointment as a result of construction works interrupting the parties seeking compensation as they rested in their room on a holiday. 14The effect of the Civil Liability Act provision is that a breach of a Residential Tenancy Agreement is not compensable unless it reaches the threshold of 15% of the most extreme case. The result in the present case is that no amount can be awarded as the loss is in the nature of non-economic loss of the type referred to in the above cases. 15I am persuaded that the premises were in part not habitable. The tiles on the balcony had been removed and a black sheet had been placed over the sliding door between the lounge room and the balcony. The balcony could not be used. To reflect this, an appropriate order would be for rent for the period between 18 April 2013 and 27 May 2013 to abate by 10%. 16I do not accept, despite the discomfort stress and inconvenience described by Ms Chan, that the premises could be said to be otherwise inhabitable. 17I am also satisfied that an order should be made for the refund of the overpaid rent $461.54 from 28 to 31 May 2013 inclusive.