Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Mary Weiler v NSW Land and Housing [2014] NSWCATCD 20 Hearing dates: 16 October 2013 Decision date: 17 January 2014 Jurisdiction: Consumer and Commercial Division Before: J Bordon, Senior Member Decision: The respondent is to carry out such repairs to the residential premises, as are necessary to address the following: (a) Prevent the shower in the bathroom from flooding (b) To attend to the exposed particle board in kitchen (c) Damp on the walls in the lounge and bedroom (d) Detached cornice on the ceiling in the bedroom (e) Damp and mould in the kitchen cupboards (f) Damaged fly screens (g) Rusted hinges on cupboards in kitchen (h) Leaking taps in the bathroom (i) Pests in the common areas coming into the property The application for an order that rent is excessive due to the reduction or withdrawal of goods, services or facilities provided with the residential premises is dismissed. The respondent is to pay to the applicant the sum of $884.00 within 14 days of this decision. Legislation Cited: Residential Tenancies Act 2010 Category: Principal judgment Parties: Mary Weiler (Applicant) NSW Land and Housing Corporation (Respondent) Representation: Mr Barker (for the Applicant) Ms De Leo (for the Respondent) File Number(s): SH 13/29622 reasons for decision The application 1An application was filed with the Tribunal Registry on 31 May 2013 by Mary Weiler seeking an order for compensation (as finally amended, for a sum of $5,996.00), an order that rent is excessive due to the reduction or withdrawal of goods services or facilities provided with the residential premises and an order that the landlord carry out repairs. 2At the hearing before the Tribunal the applicant, Ms Weiler, gave evidence and made herself available for cross examination. Her evidence was not challenged. 3The respondent's evidence was limited to an email and a collection of photographs. The submissions on behalf of the applicant in this regard should be accepted. 4Where there is dispute in the submissions by the respondent as to the need for repair, I agree that the applicant's evidence should be preferred, and I accept that the property has been beset with maintenance issues for over 12 months and that some of these issues are still outstanding. 5The respondent in fact admits that the exposed particle board in the kitchen, the damp in the lounge and bedroom and damaged flyscreens and rusted hinges in the kitchen are items which require repair. I also find that the following items require repair or attention: A detached cornice on the ceiling in bedroom, damp and mould in the kitchen cupboard, leaking taps in the bathroom and pests in the common area coming into the premises. 6In those circumstances, it is appropriate to make orders under section 65(1)(a) that the respondent carry out repairs to address the problems referred to above. The claim for rent reduction 7Section 44(1)(b) of the Residential Tenancies Act 2010 as follows: (1) Excessive rent orders The Tribunal may, on the application of a tenant, make any of the following orders: (a) an order that a rent increase under an existing or proposed residential tenancy agreement is excessive and that, from a specified day, the rent for residential premises must not exceed a specified amount, (b) an order that rent payable 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 provided with the residential premises and that, from a specified day, the rent for residential premises must not exceed a specified amount. (2) Time limit for excessive rent increase applications An application for an order that a rent increase is excessive must be made within the period prescribed by the regulations after notice of the increase is given. (3) Applications on withdrawal of goods or services 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 provided with the residential premises, even if those goods, services or facilities were provided under a separate or a previous contract, agreement or arrangement. (4) Determination of excessive rent For the purposes of making an order under this section, the Tribunal may declare that amounts payable under a contract, agreement or arrangement under which goods, services or facilities are provided to the tenant are rent. (5) The Tribunal may have regard to the following in determining whether a rent increase or rent is excessive: (a) the general market level of rents for comparable premises in the locality or a similar locality, (b) the landlord's outgoings under the residential tenancy agreement or proposed agreement, (c) any fittings, appliances or other goods, services or facilities provided with the residential premises, (d) the state of repair of the residential premises, (e) the accommodation and amenities provided in the residential premises, (f) any work done to the residential premises by or on behalf of the tenant, (g) when the last increase occurred, (h) any other matter it considers relevant (other than the income of the tenant or the tenant's ability to afford the rent increase or rent). (6) Effect of excessive rent order An order by the Tribunal specifying a maximum amount of rent: (a) has effect for the period (of not more than 12 months) specified by the Tribunal, and (b) binds only the landlord and tenant under the residential tenancy agreement or proposed residential tenancy agreement under which the rent is payable. Note. A tenant under a social housing tenancy agreement may also apply for an order that rent is excessive if a rent rebate is cancelled (see section 141 (1)). 8Briefly, the position of the applicant is that the section 44 applies to social housing tenants and that rent should be given the meaning that it is the varied amount payable after the application of a rent rebate. 9After considering the arguments presented my view is that the amount inserted in Part 1 of the Residential Tenancy Agreement as rent is the amount payable by the tenant under the Residential Tenancy Agreement for the right to occupy the premises.I have carefully considered the detailed submission by the applicant's solicitor. I am not, however, persuaded that the rebated rent (that is, after the deduction of rent rebate) is to be taken to be the rent payable for the purposes of section 44(1)(b). I prefer the respondent's submission that the rent payable should be taken to include the amount of the rebate. 10As I propose to deal with the claim for compensation for loss of bargain it is not necessary for me to consider in any great detail the various arguments presented by the applicant in support of the claim for an order that rent is excessive. 11However, I should indicate that I have difficulty with the proposition that the amount payable is the rebated rent. 12The granting of a rental rebate is governed by the Housing Act 2001. The application of the policy for the granting of rental rebates does not in my view, become part of the Residential Tenancy Agreement by virtue of clause 41.1 of an agreement. In particular, I do not agree with the proposition that the mechanism forms part of the agreement between the parties if by this is intended that the application of the policy is to be considered a term of the Residential Tenancy Agreement. 13Nor do I find the approach in NSW Land & Housing Corporation v Bergman (Tenancy) (2008) NSWCTTT persuasive. I do not see any inconsistencies arising, if one views each payment of rebated rent as including with it the notional amount of the rebate by application of the policy of the respondent. The decisions of predecessor of this Tribunal in NSW Department of Housing (Landlord) v Chris Christodoulou Maria (1996) NSWRT 8 and of this Tribunal in Department of Housing of New South Wales v VL Elkaizzi(2004) NSWCTTT 633 correctly represent the position in my view. 14However in the present in the present case there has been a breach of the Residential Tenancy Agreement by the failure on the part of the Land & Housing Corporation to effect repairs. 15I agree with the proposition that the applicant had a bargain with the respondent that the premises were to be maintained in a reasonable state of repair. To summarise, the applicant did not have full use of her kitchen, her bathroom or her bedroom, on the evidence before me. Of particular significance is the reduced facility of the shower in her bathroom. 16I agree with the submission that she is therefore entitled to be compensated for the part of the bargain that she had not received from the respondent. The failure to repair has led to a loss in that the premises provided for the rent paid on her evidence had reduced amenities. 17I have noted the submission by the respondent to the effect that the claim and submissions by the applicant regarding the loss of bargain essentially are a claim of compensation for a loss of facility as a result of a breach of agreement for failure to carry out repairs to the premises. I do not however accept that this is identical to a claim that rent is excessive. Of course in quantifying the loss, some of the considerations that are relevant in an excessive rent claim, may also be relevant. 18In assessing the breach to the loss flowing from the breach, I have accepted the evidence in the applicant's statutory declaration as supplemented by her oral evidence. I have taken into account 12 months of reduced facilities and the amenities in the premises as a result of the failure to repair by the respondent. I have had regard to the market rent for the premises and to the amount actually paid after the rebate. The amount awarded will be the sum of $884.00. 19To be clear what is notbeing compensated here is any non-economic loss arising out of personal injury such as feelings of disappointment inconvenience or any other similar state of affairs which may constitute impairment a person's mental condition. I agree that in matters as the present, the effect of decisions in Insight Vacations Pty Ltd v Young (2010) NSWCA 137 and Flight Centre v Janice Louw (2011) NSWSC 132 by the application of the Civil Liability Act 2002 is such that no amount would be awarded for non-economic loss. ORDERS 20The respondent is to carry out such repairs to the residential premises, as are necessary to address the following: (a)Prevent the shower in the bathroom from flooding. (b)To attend to the exposed particle board in kitchen. (c)Damp on the walls in the lounge and bedroom. (d)Detached cornice on the ceiling on the ceiling in the bedroom. (e)Damp and mould in the kitchen cupboards. (f)Damaged flyscreens. (g)Rusted hinges on cupboards in kitchen. (h)Leaking taps in the bathroom. (i)Pests in the common areas coming into the property. 21The application for an order that rent is excessive due to the reduction or withdrawal of goods, services or facilities provided with the residential premises is dismissed. 22The respondent is to pay to the applicant the sum of $884.00 within 14 days of this decision. John Bordon Senior Member Civil and Administrative Tribunal of New South Wales 17 January 2014 I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar ********** 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: 16 May 2014