Civil and Administrative Tribunal New South Wales Medium Neutral Citation: North Coast Community Housing v Knight Joanne Knight v North Coast Community Housing [2014] NSWCATCD 132 Hearing dates: 12 September 2013, 8 October 2013, 5 December 2013 Decision date: 11 February 2014 Before: G Bassett, General Member Decision: 1. On or before 4 March 2014, the tenant is to remove all rubbish underneath the premises; 2. If the tenant does not comply with order 1, at any time on, or before 4 June 2104, the landlord may renew the application for termination of the residential tenancy agreement; 3. On, or before 18 March 2014, the landlord is to inspect the premises and carry out any repairs not already done as listed in the tenant's repair letter dated 2 April 2013; 4. If the landlord does not comply with order 3, at any time on, or before 18 July 2014, the landlord may renew the application for termination of the residential tenancy agreement; 5. From 17 July 2013 until 16 July 2014, the rent is not to exceed $352.00 per fortnight. Catchwords: Repair, reasonable state of cleanliness, nuisance, non-rent arrears, excessive rent Legislation Cited: ss 44, 51, 87, 187(b) Residential Tenancies Act 2010 Category: Principal judgment Parties: North Coast Community Housing (Applicant / cross respondent) Knight (Respondent / cross applicant) File Number(s): SH 13/13004, SH 13/25565 reasons for decision APPLICATION 1The landlord lodged their application on 8 March 2013. The applicant claimed there had been a lengthy history of nuisance and annoyance, including, though not restricted to reports of excessive loud music, domestic violence, fighting and arguments between the tenant and visitors. 2A hearing was set for 1 May 2013. At the landlord's request this was adjourned to allow the landlord further time to collate evidence. The tenant's cross application was lodged with the Tribunal on 10 May 2013. Both matters first came before Member Holwell on 5 June 2013. On 5 June 2013 Member Holwell adjourned both matters for hearing and made the usual directions in relation to documents. 3The tenant's claim alleged that the tenant wrote to the landlord on 2 April 2013 about an extensive of number of repairs to the premises. Several repairs were urgent repairs which posed a risk to the tenant's safety. The landlord failed to do repairs. Due to the exclusive repairs and loss of use of parts of the premises, the tenant requested a rent reduction of 25% of weekly rent from 2 April 2013 and rebated on a weekly rent of $181.70. 4File SH 13/13016 was also lodged on 8 March 2013 by the landlord. It sought an order that the tenant pay all rent payable to the Tribunal until the agreement had been performed or an application for compensation had been determined. On 12 March 2013 Ms Ward wrote to the Tribunal and asked that that the order sought under s 187(1f)(1) of the Act in SH 13/13016 be included in the SH 13/13004 matter. Application SH 13/13016 was withdrawn on 12 March 2013 by order of the Registrar. 5On 12 September 2013, both matters came before me. At that hearing, it became clear that the tenancy had been on foot since 2002. There was a vast number of documents and new documents were tendered at the beginning of the hearing. The matter continued through lunchtime and into a third hour, but still remained part-heard. Cross-examination of the landlord's representative was continuing. 6The matter was further heard on 8 October 2013. Due to the behaviour of the parties and landlord's representatives, but not the representative for the tenant, that hearing had to be stood down for a time to allow all present to collect their thoughts. That hearing too was part-heard. JURISDICTION 7There had been a very long running tenancy between the parties and jurisdiction was not at issue. APPLICANT'S EVIDENCE 8The landlord relied on a bundle of documents titled, "Order of Evidence", lodged on 19 June 2013. It included the following: (a)Routine inspection summary from tenancy manager, file history pertaining to property; (b)Client notes; (c)Proof of upgrade and costs; (d)Combined letters - NCCH, Lismore Shire Council (e)Previous CTTT order 2007; (f)Ongoing letters of distress from neighbour, 2008 - 2013; (g)Two "Non-Rent Statements" for charges regarding property damage, water costs. The first completed calculations as at 31 May 2013 and the second completed calculations on 19 August 2013; (h)Termination Notice dated 23 January 2913 claiming breach of Clauses 8.2 and 8.3 of the residential tenancy agreement and citing reports of loud music, fighting and arguments, shouting and excessive partying on 3 separate occasions; (i)Termination Notice also dated 23 January 2913 claiming breach of s 87 of the Act and citing breach as "not paying your non-rent statement" and seeking an amount of $5,580.84 for tenant damage, repairs and water consumption. 9During the hearing the landlord also submitted further photographs of the property taken during the inspection on 11 September 2013. Two (2) further letters from a neighbour dated 16 July 2013 and 29 July 2013 were also relied on. These made allegations about the behaviour of the tenant at the premises. One of these letters also contained a handwritten chronology of events. The landlord also relied on a letter dated 5 September 2013 from Lismore City Council to the landlord. This indicated that an organics bin located at the premise of the tenant had not been collected by Northern Rivers Waste on or about 2 August 2013. The reason for non-collection was that "it contained non-organic material that would have caused contamination of the entire load". 10A copy of the original Residential Tenancy Agreement was also tendered by the landlord. A letter from the landlord to the tenant dated 25 March 2013 warned the tenant about complaints about her behaviour and creating a nuisance by disturbing the peace, comfort and harmony of neighbours. 11On 15 May 2012, the landlord also wrote a letter to the tenant attaching a Notice of Termination based on rental arrears. The Notice of Termination gave the tenant until 8 June 2012 to vacate the premises. It stated rent arrears owing as at 15 May 2012 was $2,805.29 based on a weekly rental of $310.00. It also indicated the tenant had failed to pay water and other charges contrary to section 139 and 140 of the Residential Tenancies Act 2010. 12A further letter of 18 April 2012 warned the tenant of rent arrears and non-rent arrears was tendered into evidence. Other letters of 30 November 2011, 5 April 2012 and 16 March 2012 were also relied on. 13At the commencement of the first part-heard hearing on 12 September 2013, the landlord handed up two (2) more sets of photos of the property, one dated 3 June 2013. The second set was purportedly taken during a routine inspection on 11 September 2013, the day prior to the hearing. An updated rent ledger was also tendered into evidence. EVIDENCE OF MS WICKS 14Ms Wicks said there had been ongoing and recurrent damage done to the property by the tenant since the tenancy started. North Coast Community Housing was a community service provider. Ms Knight acquired the tenancy under succession when her mother passed in 2002. Ms Wicks said the property was handed over in 2002 in good condition. There had been a major upgrade. There were no photos or entry condition report in 2002. Ms Wicks handed up photos of the property from 2004, which showed it to be in good condition. She also had some photos of the property in 2006 from an earlier CTTT action. 15Ms Wicks said that there was a major renovation of the property, on or about 15 February 2011. It was also around this time that complaints arose about noise and nuisance of the tenant. Ms Wicks said she went to the property with another manager on 15 February 2011. She took photographs. The property was in a bad state of repair. She visited again on 23 February 2012 and took further photographs. She said the garden had been ignored, clothes were lying all over the house and there were broken windows. There were no locks and the front door was damaged. The shower hose was missing from the wall. Water was pouring from the wall pipe into the bath. The tenant had been getting large water bills at the time and Ms Wicks suggested this was probably due to the damaged pipe in the bathroom. She said there was no food in the fridge or in the cupboards. She found rat faeces and grime in the cupboard. She informed Ms Knight that she would have to do something about the rats. She informed her she must keep the premises clean. The toilet was blocked. Screens were missing from the house. At that time, Ms Wicks questioned the tenant as to whether she was living at the premises. 16During the full upgrade in 2011, $18,000.00 was spent refurbishing the property. A new stove had been provided, screens were replaced and repainting was carried out. Ms Wicks said that in March and August 2012 there were further inspections. These showed that the property was poor only one (1) year after the major refurbishment. Lawns were overgrown. Screens were missing, there was a shopping trolley in the yard, piles of clothes around the property, holes in walls, cobwebs and dust and a broken window. 17There had been numerous other applications to the CTTT for the tenant to maintain the premises. Ms Wicks said even though specific performance orders had been made in the past, they had not been complied with. She said that on the inspection on 15 February 2011, the property could be described as almost abandoned. Ms Wicks said a neighbour complained that it was being used as a party house. Council had sent NCCH letters about maintenance of the lawns, vegetation and a smell from rotting rubbish. The neighbour rang and complained about the smell from rubbish under the house. In December 2012, the landlord paid a contractor to clean rubbish at the premises because of complaints that had come from Council. This problem arose only twelve (12) months after the refurbishment in 2011. 18Ms Wicks relied not only on the photos of June 2013, but specifically referred to the photos of 11 September 2013, the day before hearing. These showed that the void underneath the house had been used to store household waste and food. The rubbish had become flyblown. There was a heavy smell from the area. The photos showed a state of disrepair inside and, once again, screens were strewn about the yard. She also referred to the Lismore Council letter where they had refused to pick up the organics bin. 19Ms Wicks referred to the updated non-rent statement for September 2013 which showed arrears of $5,257.16. She referred to damage behind the front door. 20In exacting cross-examination by Miss Flowers, Ms Wicks made concessions. 21Ms Wicks conceded the work orders for work done at the premises in the 2011 upgrade were quoted costs rather than invoices for actual work done. Part of the work done was referred back to the tenant for payment and these works were included in some of the non-rent amounts alleged to be owing by the tenant. The tenant was not responsible for all items but only some of the items would have been caused by tenant damage. In the "Non-rent statements" amounts paid by the tenant itemised as "D116 receipted amount" was money coming in from the tenant and receipted against non-rent charges owing by the tenant. 22Ms Wicks admitted a broken window at the tenant's premises which was repaired on 19 October 2012 could have been caused when the frame of the window had been painted over when the refurbishment was undertaken in 2011. This made the window difficult to open. 23When presented with a document about GST registration for work of a person called Rose whose invoice the landlord had tendered, Ms Wicks conceded that an invoice for the lawn contained a claim for GST even where that person was not registered for GST. 24A plumbing repair in the 2011 refurbishment where a shower hose and parts had been allegedly ripped from the wall was claimed against the tenant as damage caused by her even though Ms Wicks, begrudgingly, accepted there was a possibility some of the damage may have been caused by corrosion. 25The thrust of the tenant's case was that most of the repairs of which the tenant claimed were ones that had been reported by the tenant on numerous occasions and that were itemised in a letter from the tenant to the landlord of 2 April 2013. The tenant's position was that the landlord had failed to carry out those repairs. The landlord contended that those repairs were required due to misfeasance of the tenant. 26When shown the 2 April 2013 letter listing repairs needed at the premises, Ms Wicks said: "We won't be doing a lot of these repairs because they came about due to tenant damage at the property". 27When shown the photos of the landlord taken 3 June 2013 and asked whether these photos reflected the problems with the premises that the tenant had outlined in the letter of 2 April 2013, Ms Wicks said: "We are not going to renovate the house again because it's been neglected by the tenant for the umpteenth time". 28Ms Wicks further said that getting access to the property to do urgent repairs indicated in the letter of 2 April 2013 had been difficult. Only some repairs had been done. She conceded that no access order was sought through the CTTT. 29When shown a large pile of water accounts alleged to be owing on the property and backdated to 2009 and asked why these had been left to claim until 2013, Ms Wicks said: "Water has always been a ledger issue. It is often absent from the property. The tenant did not report water issues". 30Ms Wicks also conceded that a bill that had been issued for the property on 28 February 2013 for a burst water main arose from an issue the tenant had raised in a letter written to the landlord stating a leak was caused by a neighbour hitting a water main with their lawnmower. RESPONDENT'S EVIDENCE 31The tenant relied on the following documents: (a)Letter from tenant to NCCHC dated 2 April 2013; (b)Letter from a neighbour called Hope; (c)Photographs of premises taken on 14 March 2013 comprising photos of the walls, floors, ceiling, laundry, rear of house, kitchen, side view and bathroom; (d)Email from an officer of Lismore City Council; (e)a document entitled Plumbing the depths of simple home repair; (f)Photographs of the premises taken by NCCH; (g)Property Inspection Report from NCCH dated 3 August 2012. 32On 8 July 2012, the tenant also provided a further bundle of documents, which included: (a)2 CTTT Notices of order; (b)Housing Appeals Committee Report; (c)Letter from a neighbour dated 28 June 2013 and 8 August 2012; (d)Letter from another neighbour, undated; (e)Letter to Housing New South Wales dated 3 July 2013; (f)NCCH Strategic Plan 2013 - 2016; (g)A document entitled Conditionality, Recognition and Indigenous Housing Policy in Australia 2012. 33The tenant stipulated that she indicated repairs were needed at the property in her letter of 2 April 2013. After this, a periodic inspection was done but the request in the letter of 2 April 2013 was ignored. 34The tenant also said she told the landlord's agents many times about problems with the property prior to the letter, particularly the floor splitting, walls splitting and numerous leaks at the premises. 35She relied on written statements from a person who had also lived at the premises. In an undated, written statement that person said: "I have been into the NCT [sic] office with Joanne when she has asked for repairs to be done and they just must not write them down as the repairs don't seem to be completed, Joanne needs all the help she can get and nobody wants to give her a fair go. Also when there is a downpoor [sic] of rain underneath the house fills to about 3 feet of water now that is a health issue and this has been doing it for years as one of my good friends lived in that house many years ago and she had the same problem. Joanne has never damaged the property she has lived in the house as any standard person would". 36The thrust of the tenant's case was the photos relied on in her own evidence reflected a condition of the property that was essentially the same as that reflected in the photos relied on by the landlord. However, the difference for the tenant was they had clearly indicated in their letter of 2 April 2013 what these problems were and the landlord had failed to make good. 37The tenant was presented with each of the photos relied on in her evidence and asked to specify deficiencies of the property. She said linoleum had split from water leaks. There was a ditch in the linoleum between the kitchen and the lounge room. Leaks came through light bulbs at the property and they continually blew as a result. Bulbs would no longer hold into fittings at lights. Screws were coming off doors. The lounge room was stained from a leak. She said that despite the landlord's claim that they spent $2,000.00 repainting the property in the 2011 refurbishment, she could not see where that had been done. Paint was peeling off. In the laundry, the paint came off when the tenant hosed the laundry floor to clean it. There was fungus in the outside bathroom as there was a leak in it. The old hot water system that had been replaced was still in the ceiling and it became wet, mouldy and rusted in the ceiling. She said she could hear the pipes banging in the walls. There was a gap in the back door. She referred to a photo of a power point which, after being repaired by the landlord, blew her toaster and kettle when she went to use them again. Despite repair, kitchen cupboards kept coming away from the wall. The sink was lifting out from the bench due to leaks. Marks in the kitchen cupboards were not caused by and infestation of rats but were the result of leaks in the sink. Tiles were falling down in the bathroom and would not remain stuck to the wall where they had been laid. Water leaked from a loose toilet. The floor in the toilet and bathroom drained to the wall rather than to the drain. There was mould on the walls. 38Ms Knight said that she often complained to the landlord. Mostly the answering machine would be on and even though she left messages, calls were never returned. 39She said that a plumber who did attend the property told her that all the pipes behind the tiles in the bathroom were rusted. There were continuing problems with taps. The shower curtain kept coming away from the wall. Tiles were cracking. 40Five (5) photographs taken from a camera facing the tenant's window indicated that a CCTV camera had been placed on the neighbour's property to face the bedroom window of the tenant's daughter. The tenant had told the landlord about this problem, but nothing had been done. It was that neighbour who made the behavioural complaints about the tenant in the evidence of the landlord. Another letter from Northern Rivers Community Legal Centre to the landlord dated 3 July 2013, informed the landlord that the person who had complained about the conduct of the tenant was the one who had installed a surveillance camera on the rear end of her property and that the camera pointed to the bedroom of the tenant's young daughter. It asked that the camera be removed. At the time of hearing, it was still in place. 41The tenant referred to a property inspection report of the landlord dated 3 August 2012. This report itself itemised problems and the tenant said these remained outstanding at the time of hearing, apart from a cracked window which had been repaired. 42The tenant also gave evidence about the landlord's application. She was shown orders by the Tribunal of 27 September 2012 in another matter. Member Howell ordered the landlord in that matter to provide evidence of market rent increases between 2002 and 2012 and evidence supporting the claim for payment of repairs. That application by the landlord, which on its face appears to have been about the same issues raised in this particular proceeding, was dismissed on 17 January 2013. Reasons given by Member Holwell included that there was no appearance by the landlord. The landlord had not provided the documents in relation to market rent increases or evidence supporting the claim for payment of repairs by the time the matter was dismissed. Even if the landlord had appeared, the hearing may not have been determined on that day because of non-compliance with that earlier direction. 43In addition, a Housing Appeals Committee ("HAC") hearing was on foot at that time and scheduled for 14 February 2013. In the HAC appeal the tenant successfully appealed a decision by the landlord to end her rent subsidy based on a claim she had abandoned the premises. In a report dated 27 February 2013, the HAC indicated that there was insufficient evidence from the landlord to conclude that the tenant had abandoned the property. Further, the tenant's rental subsidy was to be reinstated from 9 December 2011 until 1 August 2012. The subsequent hearing summary of that HAC decision dated 14 February 2013, recommended that the landlord "not proceed with their application to the Consumer, Trader and Tenancy Tribunal in relation to rent arrears which occurred due to cancellation of the rental subsidy". 44The tenant also relied on written statements from various neighbours. One dated 28 June 2013 stated that while there were parties at the premises, they were no louder than gatherings at other addresses in the area. It reiterated that a burst water main was caused by a neighbour hitting the main with a lawnmower. 45Another neighbour who had lived in the area for years indicated that some incidents of unruly behaviour alleged to have been committed by the tenant had not occurred at her residence at all. She said that the tenant was an extremely quiet person. 46In cross-examination, the tenant became agitated and uncooperative. To be fair to the tenant, she suffered from hearing problems. She was often also interrupted by the landlords' representatives while giving evidence as they sought to take issue with each of the answers as they were given rather than waiting until the proper time during final submissions. The tenant repeatedly said that the property was unfit to live in. I tried to clarify with her whether she was seeking to have the tenancy terminated as the place was unfit or was she merely seeking a rent reduction as in her written application. The matter was stood down for some time to allow the various parties to gather their thoughts due to the hostile atmosphere that arose during the course of this cross-examination. 47The tenant was shown the photographs taken on 11 September 2013, the day before hearing. She gave sworn evidence that she had told the landlord that she getting rid of this rubbish under the property and a person had come around to the premises and picked the rubbish up. She continually asserted, despite the photograph of the day before, that the house had been cleared. She indicated that all rent had been paid at the property. REOPENING OF THE CASE 48At the commencement of the third and final part-heard hearing on 5 December 2013, the landlord had new photographs of a further inspection that had been done at the premises only some days before that hearing. 49The matter was stood down for some time to allow Miss Flowers to get instructions from her client as to the recent set of photographs that had been submitted. 50Only with respect to those photographs and the inspection on which they were based, the applicant's case was re-opened. Angela Ward gave evidence in chief about that inspection. She said that the property was the same as it had been on 11 September 2013 when that inspection had been done and was still as indicated in the photos provided at the earlier part-heard hearing. She indicated that she did not speak to the tenant very much during the inspection. She said she did not give much attention to inspecting the internals of the house due to the hostile nature of the tenant during that inspection. The only photos she had were of the pile of rubbish underneath the house. She pointed out that the tenant had given sworn evidence that the pile had been removed but it was still there. The main aim of Ms Ward's evidence and the questioning of the tenant on these photos was to establish that the tenant had made a prior inconsistent statement about having had the rubbish under the premises removed and may have misled the Tribunal when giving sworn evidence. Ms Ward said it was rotting rubbish and she could smell it. There had been ongoing further complaints from the neighbour in relation to the smell on hot days. 51In spirited cross-examination from Miss Flowers, Ms Ward made the following concessions. 52She conceded that the tenant was probably given less than the proper notice period before the inspection. Further, though she had said there had been four (4) inspections in the last twelve (12) months, Ms Ward conceded this inspection could have been a fifth and was not a scheduled routine inspection allowable under the Act. Ms Ward said the inspection had been done the day before hearing "to give evidence about the current condition". She said" if the landlord is concerned about damage, inspections are done more frequently in order to prevent blown out upgrades". She admitted that the intention of tendering into evidence the photos on the third part-heard hearing day was to prove that the tenant had misled the Tribunal about the removal of the rubbish and the particular area was in the same condition as it had been in September 2013. She conceded that the rest of the property, apart from the rubbish under the house, was not worse but certainly not any better than it had been in September. Ms Ward said there had been no recent written complaints about the tenant from the neighbour and that neighbour had "given up" on written complaints but had made oral complaints. 53The tenant was allowed to re-open her evidence to give comment on the last inspection. She indicated that since the second part-heard hearing on 18 October 2013, Centrelink had made a mistake with her regular payments and they had ceased entirely for a short time. As a result, she had been short of money and while she had organised a trailer ready to remove all the rubbish as she had said during the 18 October hearing, she had been unable to afford to do so. As a result, she had still been putting things under the house. She said the rubbish in the photo was not organic or food, but a bed, a TV stand and some old plastic. She had been placing food in the ordinary bin. She tendered some documents to indicate the renewed payments she received from Centrelink. She said she could afford to have that rubbish under the house removed as soon as possible. CLOSING SUBMISSIONS FOR THE LANDLORD 54Ms Wicks said that a social housing provider should not be required to repair and upgrade properties even though they had only done so to this premise two (2) years before. They should not be liable to continually repair properties when damage is caused by a tenant. Ms Wicks said the tenant had deliberately misled the Tribunal at the 18 October hearing in relation to having had the rubbish removed. In relation to the claim by the tenant that her Centrelink payments had been reduced, Ms Wicks said the tenant had made no application to the landlord to have her rent subsidy increased due to such reduced payments. CLOSING SUBMISSIONS FOR THE TENANT 55In relation to the claim of the tenant, Miss Flowers indicated that the tenant maintained a claim for repairs. She said that the tenant had phoned, visited and asked for repairs in 2012 and 2013. Routine inspections had been done and repairs required documented. The tenant herself had documented the repairs necessary in her letter of 2 April 2013. This was a comprehensive list. Some of these matters were urgent and ought to have been done in seven (7) days. The balance should have been done in at least a month. Neither had been done. The only ones that had been done were the plumber repairs for the tap in the kitchen and bathroom. A number of problems at the property had not been attended by the landlord. The Tribunal ought not accept the landlord's proposition that the tenant was unavailable for repairs. The statement of the person who had lived at the premises indicating that the tenant had regularly reported problems about the property, including the water, should be relied upon as independent evidence of the tenant having complied with their duty to report. Even as at 14 June 2013, in an email from Lismore City Council, the Council indicated it had attended the property and there was a problem with water links on the tenant's side of the water meter. The tenant had contacted the landlord and nothing had been done. 56At the landlord's own inspection on 3 August 2012, a lack of a kitchen tap was noted as was chipped and stained lino. On 3 June 2013, further lists of repairs were indicated. Both these reports reflected only those problems that had been indicated by the tenant in her letter of 2 April 2013. Consequently, the tenant had complied with their duty to report issues under section 51(2)(b) of the Act. The landlord's inspections on 3 August, 3 June and those in September and just prior to the final hearing in December clearly indicate that the landlord was aware of the repairs required. Ms Wicks, during her own evidence, has indicated that the landlord has simply refused to carry these out in its misdirected belief that they had been caused by the tenant. Contrary to section 51 of the Act, the landlord had failed in its obligation to do some repairs to the premises in a timely fashion and others were not done at all. 57Miss Flowers also said that the Tribunal should accept that a lot of the problems complained of by the tenant were due to the poor condition of the upgrade that was carried out on the property in 2011. They were not due to damage caused by the tenant. She referred to the admissions of Ms Wicks that the windows had been painted shut and this is what led to one being broken when the tenant attempted to open it. She also said the property had been let for over twelve (12) years and wear and tear should play a significant factor in the Tribunal's considerations. She said the tenant sought a 25% reduction of rent from 2 April 2013 until repairs are completed. Further, she wanted an order for repairs to be done. The itemised list of repairs is as they set out in their letter of 2 April 2013. Of those items, only the kitchen tap had been repaired. 58In relation to the landlord's claim against the tenant, Miss Flowers said that in the landlord's originating application the landlord sought to terminate based on nuisance and annoyance. It was common ground between the parties that virtually all of this hearing was about the issue of property care. 59Miss Flowers submitted that the landlord was motivated to act against the tenant due to the dismissal of its claim in SH12/31846 on 17 January 2013 by Member Holwell. Further, it was prejudiced against the tenant due to HAC not finding in its favour and ordering the landlord to reinstate the rent subsidy for the tenant and not accepting the landlord's case that she had abandoned the premises. 60She said that the statements of neighbours and friends should be relied on, particularly that of the person who had lived at the premises and who indicated that Ms Knight kept the property in a clean and tidy condition and who supported the tenant's contention that she had frequently complained to the landlord about repairs and nothing was done. 61Ms Flowers submitted the Tribunal should give little weight to the complaints of the neighbour, who obviously had a dispute or vendetta against the tenant that resulted in the neighbour installing a CCTV camera which faced onto the bedroom window of the tenant's daughter. 62She said that the landlord's non-rent statements for payment for works done where rent payments had been set off against non-rent claims for alleged damages that were caused by the tenant should not be accepted. Ms Flower said that all the payments made by the tenant should be contributed towards rent. She highlighted the inconsistencies in the landlord's evidence in charging the tenant for the broken window which had been painted shut and for replacing taps and redoing pipes when the tenant clearly indicated that they had been corroded and rusted. She also submitted the Tribunal should give little weight to invoices because the landlord had charged GST for items where, on at least one (1) occasion, it was proven that the service provider was not registered for GST. 63In relation to the claim for rent arrears, she said the landlord's records did not show what payments were allocated towards rent and what amounts were allocated to non-rent arrears. The landlords never got an officer of the social housing provider to explain the rent ledger in any proper form. The ledger should not be relied on by the Tribunal. 64Miss Flowers submitted that there were numerous water bills which were very high, but that leaks still exist at the property and had not been repaired even when they had been notified. A tenant should not be required to pay for such leaks. 65In relation to the claim that the tenant deliberately misled the Tribunal about removal of rubbish under the house, she said that the tenant had given evidence that she would have that done shortly after the October hearing, but had been prevented from doing so by her change in financial circumstances due to the amendment of the Centrelink payments. She said that as the landlord failed to take photos of the other parts of the house in the final December 2013 inspection, the Tribunal should accept that on the balance of probabilities, those parts of the house were in good condition. If any order were to be made in relation to repairs, a specific performance order could be made with a short period of time to give effect to the order for the tenant to remove the rubbish under the house. The tenant is now getting a Disability Support Pension from Centrelink and has the money to arrange for the removal of such rubbish. FACTS 66Most behavioural complaints come from the person who also arranged for a CCTV camera to be placed so that it faces the bedroom of the tenant's daughter. It would follow that it is the tenant that incurs prejudice as a result to this action, not the complainant. The tenant complained about this. The Tenants Service asked for the camera to be removed and it was not. 67A written statement of that complainant on 21 November 2012 complains about an incident with her dog. She rang the police and asked them to attend. When police did attend they took no further action. On 10 December 2012 she complained that the tenant was in a new personal relationship. On 25 January 2013 she claimed other people were living at the premises and that the tenant did not mow her lawn. On 25 March she wrote that she had heard arguing. On 23 May 2013 she said that she was abused by the tenant's children, two other people lived there, a person known to the tenant fought with a relation of a neighbour and that the tenant did not put out her rubbish. The tenant history file of the landlord also itemised complaints by the neighbour in relation to breaches set out in the behavioural termination notice of 23 January 2013 for loud music, fighting and arguments, shouting and excessive partying. 68The written statements of more independent parties such as other neighbours of the tenant opine that the claimed behavioural breach did not even occur at the tenant's premises. Statements of those witnesses state that she had been quiet and a good tenant in their view. 69Many of the complaints related to allegations other people were living at the premises, not a matter raised in this proceeding. The evidence only supports the complainant's claim about the alleged rubbish underneath the premises. There had been no written complaints for some time. Ms Ward for NCCH said there had been oral complaints. 70There is little evidence to support a finding of fact that the tenant has breached Clauses 8.2 and 8.3 of the agreement as set out in the termination notice of 23 January 2013 which cited 3 instances of loud music, fighting and arguments, shouting and excessive partying. 71In relation to the non-rent arrears claim, the report of the HAC appeal hearing held on 14 February 2014 is illuminating. In that matter Ms Knight's rent arrears as at 27 September 2012 was $3,939.00. She was given a notice of termination on the basis of rent and non-rent arrears. That resulted in the CTTT claim dismissed by Member Holwell on 23 January 213 because NCCH did not attend. On page 2 of the HAC hearing summary it is stated that the HAC appeal was for a review "of the decision to cancel her rental subsidy which has led to the accumulation of rent arrears". In that hearing the tenant claimed that an issue existed over a water leak at the premises. She said at that hearing NCCH had not acted on her complaints. Page 5 the Hearing Summary stated that "there is clear evidence of poor property care and some likely periods of absence from time to time". In extrapolation on poor property care at page 6, the Hearing Summary stated that the property was "unkempt, beds unmade, refrigerator and cupboards empty and lawns unmowed". 72NCCH did not provide any evidence linking the non-rent payments with the rental ledger of rent payments paid by the tenant. It was very difficult to see what payments had been attributed as a non-rent payment and what were attributed to rent. The selection of which non-rent payments were payable by the tenant for damages alleged to have been caused by her appeared arbitrary. There does not appear to have been any communication to the tenant of what damages NCCH were seeking to recoup from her. The cross-examination of Ms Flowers raised doubts as to whether the non-rent statement itself is reliable. It was conceded a claim for GST was made for one service provider who was not registered for GST. No officer for NCCH was able to provide evidence drawing a correlation between the rent ledger and non-rent ledger. It was conceded work orders were quotations rather than invoices for specific work done. The tenant history ledger does state that at 3 August 2012 the property had been inspected and claimed "majority cost to the tenant". There is no further mention in that file of non-rent costs alleged against the tenant. At hearing the documents indicated the tenant was paying $387.18 per fortnight. It was conceded rent was only $352.00 per fortnight. Ms Wicks suggested this excess could be $26.18 for rent arrears rather than payments to non-rent but no evidence was given of any rent arrears. I am not able to make any finding of fact as to the amount of non-rent arrears owing. On the evidence before the Tribunal the tenant has been making payments beyond the rent of $352.00. These might be characterised as non-rent payments but on the documentation I am unable to establish how the amount of non-rent was calculated, how the tenant was informed of it and what credits were made to non-rent from the amount paid by the tenant beyond rent. 73The cross-claim asks the Tribunal to find that the damage at the premises was not caused by the tenant? Rather, it was the tenant's case that they were repairs that arose during the long tenancy which the tenant reported and the landlord failed to do anything about. Given the long history of tenancy and the fact that the Act limits any rent reduction order to no more than 12 months, it is pertinent to look at evidence that arose 12 months prior to the application date. However, the evidence of NCCH was allegedly fully refurbished in 2011 needs to be considered. The problem is that no new entry condition report was entered into at that time. Any earlier condition report cannot be relied on to establish the condition after the refurbishment in 2011. Nor can the photos prior to 2011. 74The HAC appeal indicates there was poor property care in 2012 but this was limited to mowing, unmade beds and empty white goods. The regular inspection report of 3 August 2012 indicated "maintenance and repairs" included cracked windows, poor flooring, marked walls and floors, a dirty oven, cracked wall tiles, rust in the bath and bins full of incorrectly placed rubbish. Lino was chipped and stained and contained tears. The tenant's letter of 2 April 2013 raised the issue of ongoing leaks in the kitchen tap, problems with the lino, water damage marks in cupboards, the need for replacement window screens, a leaking toilet and a cracked storm-water outlet. Urgent repairs included repairs of leaking taps, inspection of the entire plumbing in the house and repair of a broken light fitting and power point. The condition reports of the landlord of 2013 indicate the premises had problems as outlined in the letter of 2 April 2013. Ms Ward indicated that in December 2013, the premises inside were no worse and no better that what they had been during 2013. 75What was unequivocal was the evidence of Ms Wicks. From 2 April 2013 at least, the landlord considered the tenant responsible for most of the damage in the premises. She refused to carry out any further repairs. 76On the evidence before the Tribunal it was not be possible to say that all of the need for repairs was due to fair wear and tear over the length of the tenancy. The HAC appeal attributed some of the poor condition to the tenant even if it were for more peripheral problems. But there is evidence to show that the water leak at least arose from an accident by a neighbour when moving. There is ample evidence the tenant reported these problems. APPLICATION OF RELEVANT LAW 77Section 87 of the Act is as follows: 87 Breach of agreement (1) A landlord may give a termination notice on the ground that the tenant has breached the residential tenancy agreement. (2) The termination notice must specify a termination date that is not earlier than 14 days after the day on which the notice is given. (3) The termination notice may specify a termination date that is before the end of the fixed term of the residential tenancy agreement if it is a fixed term agreement. (4) The Tribunal may, on application by a landlord, make a termination order if it is satisfied that: (a) the tenant has breached the residential tenancy agreement, and (b) the breach is, in the circumstances of the case, sufficient to justify termination of the agreement, and (c) the termination notice was given in accordance with this section and the tenant has not vacated the premises as required by the notice. (5) In considering the circumstances of the case, the Tribunal may consider (but is not limited to considering) the following: (a) the nature of the breach, (b) any previous breaches, (c) any steps taken by the tenant to remedy the breach, (d) any steps taken by the landlord about the breach, (e) the previous history of the tenancy. (6) The Tribunal may refuse to make a termination order if it is satisfied that the tenant has remedied the breach. Note. Section 152 sets out additional matters to be considered if the residential tenancy agreement is a social housing tenancy agreement. 78Section 152 sets out the additional matters where the tenancy is social housing as in this case: 152 Termination by Tribunal of social housing tenancy agreements for breach (1) In determining whether to terminate a social housing tenancy agreement on the ground of a breach by the tenant, the Tribunal is to have regard to such of the following matters as may be relevant: (a) any serious adverse effects the tenancy has had on neighbouring residents or other persons, (b) whether any breach of the agreement was a serious one, and whether, given the behaviour or likely behaviour of the tenant, a failure to terminate the agreement would subject, or continue to subject, neighbouring residents or any persons or property to unreasonable risk, (c) the landlord's responsibility to its other tenants, (d) whether the tenant, wilfully or otherwise, is or has been in breach of an order of the Tribunal, (e) the history of the tenancy concerned, including any prior tenancy of the tenant arising under a social housing tenancy agreement. (2) This section does not limit any other matters that may be considered by the Tribunal under any other provision of this Act. 79But for one issue, I do not find that the breach of behavioural clauses 8.2 and 8.3 in the agreement for are made out. I accept the evidence of others independent of the complainant at the tenant's premises. Those neighbours do not appear to be subjected to any adverse effects or unreasonable risk from actions of the tenant. On the contrary, that complainant engaged in activity with the CTTV camera that caused prejudice to the tenant. 80However, it does appear that the tenant has stored rubbish under the house which was at least at one time a health hazard. By December 2013 this had not been cleared. I do not accept that the tenant deliberately misled the Tribunal to believe that rubbish had been removed. She had hearing problems throughout the hearings. The evidence she gave at her earlier part-heard hearing about having had it removed was under constant interruption from the applicant's representative. It may have been that she meant it was being removed at that time. That opportunity disappeared once her Centrelink payment was reduced and she was not able to afford it. Never the less, I am satisfied that it should be removed and the tenant's own representative submitted a performance order could be made to that effect. 81Nor do I make an order for termination under s 87 based on the ground set out in the 23 January 2013 termination notice of "not paying your non-rent statement". For the reasons stated in paragraphs 73 to 76 above, it is not clear what damage was done to the premises by the tenant, if any, and what was the result of fair wear and tear in a long tenancy and poor repairs in 2011. The rent payments show rent was paid and an amount in excess of rent was paid and this may have been for non-rent repairs. It ought to be noted that the termination notice did not require the tenant to make good the alleged damage, but to pay for it. I am not satisfied that such payments have been made though I am unable to establish what they have been. 82In relation to the tenant's cross-claim, s 187(1)(b) of the Act states that the Tribunal may make an order that requires an action in performance of a residential tenancy agreement. In addition, s 44 sets out the remedies of a tenant when rent is found to be excessive. 44 Tenant's remedies for excessive rent (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)). 83As indicated it is very difficult to establish what repairs ought to have been carried out by the landlord and what arose from poor property care by the tenant. But what is very plain on its face at least from 2 April 2013 is that the landlord has unequivocally refused to carry out repairs when asked to by the tenant. There was little evidence to indicate the state of the premises had deteriorated after notification of the problems on 2 April 2013. On the other hand, at least in 2011, the landlord did carry out work and incurred outgoings on the premise which were substantial. I am not satisfied that the rent is excessive but I am satisfied it ought not be increased. CONCLUSIONS 84A performance order should be made for removal of rubbish under the premises. The application for termination ought not be dismissed. Rather, the landlord ought to be afforded the opportunity to renew the matter for a period up to 3 months if the tenant fails to comply with this order. The rent should not be increased for a period of 12 months. The landlord ought to carry repairs as requested and itemised in the latter of the tenant dated 2 April 2013. ORDERS 85On or before 4 March 2014, the tenant is to remove all rubbish underneath the premises; 86If the tenant does not comply with order 1, at any time on, or before 4 June 2104, the landlord may renew the application for termination of the residential tenancy agreement; 87On, or before 18 March 2014, the landlord is to inspect the premises and carry out any repairs not already done as listed in the tenant's repair letter dated 2 April 2013; 88If the landlord does not comply with order 3, at any time on, or before 18 July 2014, the landlord may renew the application for termination of the residential tenancy agreement; 89From 17 July 2013 until 16 July 2014, the rent is not to exceed $352.00 per fortnight. G Bassett General Member NSW Civil and Administrative Tribunal 11 February 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: 11 September 2014