Jackie Gilson and John Gilson v Marcia Scally and Steven Scally [2014] NSWCATCD 59

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Jackie Gilson and John Gilson v Marcia Scally and Steven Scally [2014] NSWCATCD 59 Hearing dates: 14 January 2014 Decision date: 30 April 2014 Before: F Holles, General Member Decision: By consent, the tenants John and Jackie Gilson are to be paid by the landlord Marcia and Steven Scally the sum of $544.73 on or before 28 January 2014. Reasons: Refund of overpayment of water rates $544.73. Legislation Cited: Civil And Administrative Tribunal Act 2013 No2 [NSW] Residential Tenancies Act [NSW] 2010 Evidence Act [NSW] 1995 Cases Cited: Griffin v Duggan v [2014] NSWCATAP5 Briginshaw v Briginshaw 1938]60CLR336 Al Alwin v He and Cai CTTT [2011] Velevski v The Queen (2002) 76 ALJR 402 Category: Principal judgment Parties: Jackie Gilson and John Gilson (applicants) Marcia Scally and Steven Scally (respondents) File Number(s): RT 13/51308

reasons for decision 1.This matter was heard on 14 January 2014. The applicants appeared in person. The respondents were represented by Ms Rae Walters from Bradfield Cleary Property Managers. 2.She had the management of the property prior to the matter coming before the NCAT. The position taken by the respondents was to deny any responsibility and to insist on full payment of the water bill irrespective of circumstances. That position continued into the hearing proper. 3.The matter involves a claim in relation to overpayment of water rates by the applicants/tenants. Both parties provided reports from plumbers and gave affirmed evidence. 4.The claim was lodged with the NSW CTTT whose role and functions were subsumed by the NSW Civil and Administrative Tribunal (NCAT) on the first of January 2014 (see schedule 1 NCAT Act). 5.The savings and transitional provisions of the NCAT legislation provide for the transfer of matters from the CTTT to the NCAT (see s 7 and 8 of Schedule 1), see Griffin v Duggan [2014] CATAP5. 6.The NCAT has jurisdiction to hear the matter. 7.I find that I have jurisdiction to hear this matter. 8.The claim was made under s 187 of the Residential Tenancies Act. 9.The position for landlords to claim water rates is set out in s 39 of the Residential Tenancies Act. It provides both for the provision of water saving devices (water efficiency devices) prescribed by the regulations. Failure to make such provisions make any claim for water void. It is up to the landlord to establish that such provisions are complied with (see also Al Alwin v He and Cai CTTT 2011). 10.I have also had the benefit of re-reading lease clauses 10 and 11 which relate to water liability payments by a tenant, clause 47.4 as to keeping a tidy garden. I have also re-read clause 19, including the notes including but not limited to note "b" which set out the landlord's responsibilities as to the maintenance of the property. 11.The standard to be applied in this jurisdiction is usually referred to as the civil standard, which is also referred to as the test in Briginshaw v Brginshaw or the test of the balance of probabilities. 12.If this test is not satisfied, then an action must fail. Conversely, if the applicant in the present case establishes their case, then the evidence of the respondent must displace that case. 13.The position taken by the respondent is best characterised by the email sent by the agent on 9 March 2013 to the applicants: "Our plumber has been out to the property already and found no issues If the irrigation system was left on and you are responsible for the garden then it is on you to manage this. So the water usage stand., As John has indicated he does not use the irrigation system anymore [sic] and hand waters the gardens you should not see a repeat water usage account like this. From readings I have taken and Sydney Water have taken you are already back under your pre-October usage. I had a conversation with our General Manager and the owner of the property and they are denying your claim and expect payment of all outstanding rents [sic] immediately ". 14.Both parties provided reports from plumbers which are in the nature of expert reports. I am entitled to evaluate opinion evidence and give to it such weight as is appropriate (Velevski v The Queen [2002] 76 ALJR 420). 15.The report from the respondent's plumber found no leaks, every efficiency device complied and the cause of the leak was due to the tenants. The respondent also employed an irrigation installer, who likewise found no problems. I did not find either of these two reports to be helpful in determination of the issues in the matter because they lacked the rigour and thoroughness of the reports submitted by the tenants/applicants. Kogarah Plumbing conducted a nitrogen test to locate the lead, a process suggested by the first plumber engaged by the applicants. A small stake caused the leak, which was part of the irrigation system spiking a hose in the system. 16.The methodology to check the installation of water saving devices by the respondent's plumber was also a concern. I note that the lease provided for all internal taps to have devices fitted. Even on the agent's evidence this does not appear to have happened, irrespective of what the specific terms of the relevant regulations may be. 17.Additionally, the water efficiency devices were not fitted, despite an assertion by the respondents' plumber that they were. There were other issues with the respondents' plumber report, such as the description of the interior taps being at odds with what was actually installed. The respondent's agent explanation that they were an earlier model was not helpful in the circumstances. 18.The respondent's agent as the recipient of the water rates should have been aware of the spike in water usage. It is not a situation where all responsibility can be sheeted home to the tenant, as any proper response should have involved alerting the tenants, other than by a demand for the excess water payment, and by asserting "it's the garden and therefore your problem". 19.The irrigation system was installed by the respondents; there is nothing to suggest that the hole in the pipe was caused by the actions of the applicants. I am aware of the terms and conditions of the lease, but cannot see how the assertion of absolute liability by the agent can stand against the failure of a fixture of the landlord. It is not unreasonable to draw the inference that the damage was caused at time of installation and the leak only developed with the deterioration of the stake over time. The picture of the stake from the applicant's plumber supports this. 20.In summary, I accept to the civil standard, that the applicants have made their case and the claim for a refund of overpayment in the amount of $544.73 is made out. I am troubled by the evidence as to the installation of the efficiency devices, however, the applicants did not claim a refund of the total amount of the water usage paid and I am accordingly limited to the claim for refund of excess usage made in the initial application to the CTTT. ORDER 1.The landlords Marcia Scally and Steven Scally are to pay the tenants Jackie Gilson and John Gilson the sum of $544.73 on or before 28 January 2014. FDL Holles General Member Civil and Administrative Tribunal of New South Wales 30 April 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