Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Kimber v Gallop [2015] NSWCATAP 10 Hearing dates: 16 January 2015 Decision date: 10 February 2015 Jurisdiction: Appeal Panel Before: M Chesterman, Principal Member R Titterton, Principal Member Decision: Time for filing the notice of appeal is extended to 4 September 2014. Appeal dismissed Catchwords: Appeal - Civil and Administrative Tribunal (NSW) Legislation Cited: Dundas-Taylor v Moon [2002] NSWCTTT 563 Kelson v Department of Housing [2002] NSWCTTT 715 Osman v Pyliotis [2004] NSWCTTT 214 Category: Principal judgment Parties: Lynda Kimber (Appellant) John Gallop and Robert Gallop (Respondent) Representation: Counsel:Not applicable Solicitors:Not applicable File Number(s): AP 14/46552 Decision under appeal Citation: 29 July 2014 Date of Decision: 29 July 2014 Before: A Anforth File Number(s): RT 13/56329 reasons for decision Introduction 1. At the hearing of this matter Ms Maybin, South West Tenants Advice, appeared for the appellant/tenant and Ms Kerrie Hannah, agent, appeared for the respondent/landlord. The hearing was conducted by telephone. The appellant had sought to be included in the hearing, but each attempt made by the Appeal Panel to contact her at the time of the hearing was unsuccessful. As she was represented by Ms Maybin, and had filed various documents in support of the appeal, the hearing proceeded in the absence of the appellant. 2. The appellant seeks to appeal from a decision of the Consumer and Commercial Division of the Tribunal (the Tribunal) of 21 May 2014. 3. The appellant was the tenant of residential premises in Queanbeyan. We will refer to her as the tenant in these reasons. Her tenancy, in respect of unit 9, commenced on 27 July 2007 and terminated on 2 October 2013. The tenant had previously occupied unit 32 in the same complex from 15 March 2006, but had been forced to move from that unit to unit 9 due to damage from water entering the unit. 4. On 25 October 2013 the tenant commenced proceedings RT 13/56329 in the Tribunal. She sought compensation from the respondent (to whom we will refer as the landlord) for the disturbance to her quiet enjoyment of her strata unit for over 6 years arising from water damage, maintenance, and being locked out of the building by reason of failure of the landlord to provide security keys. By the time of the hearing the tenant claimed 10 separate items as warranting compensation. The Tribunal dismissed her claims for compensation in respect of (a) defective lifts in her buildings impeding her access to her unit and (b) water overflowing onto the balcony from the balcony immediately above. 5. However the appellant claims, correctly, that the Tribunal failed to consider her other eight claims. She claims that this was a denial of natural justice and constitutes an error of law. We agree. At the hearing the parties' representatives agreed that the appropriate course was for the Appeal Panel to determine the outstanding claims on the papers. 6. In the proceedings before the Tribunal the tenant had also sought the return of her bond. The bond had already been released to the landlord on application by him to the Rental Bond Board in satisfaction of a previous decision of the Tribunal of 2 October 2013. The Tribunal therefore decided that there was no bond left to be paid to the tenant, that the tenant's claim was without merit and that her application should be dismissed. While we note the tenant's concerns that she had not received notice of the landlord's claim to the Rental Bond Board, there is no reason to doubt the procedures undertaken by the Board and its decision to release the bond. In the circumstances we decline to make any order in respect of the bond. Extension of time 1. This is a matter in which the appellant has filed her appeal out of time, and requires the Appeal Panel to extend the time for the making of the appeal. The decision of the Tribunal was made on 29 July 2014, and appeal was filed on 4 September 2014. Unless the Appeal Panel grants an extension of time under s.41 of the Civil and Administrative Tribunal Act 2013 (the Act), appeals in respect of residential proceedings must be lodged within 14 days from the day on which the appellant was notified of the decision to be appealed or given reasons for the decision (whichever is the later): see regulation 25(4)(b) of the Civil and Administrative Tribunal Rules 2014. 2. The notice of appeal should have been lodged on or before 14 August 2014. The landlord has stated in their reply that they do not object to the Appeal Panel extending the time for the lodging of the appeal. Given the parties and the Appeal Panel agreed that the Appeal Panel should determine the outstanding claims the appropriate course is to extend the time for the filing of the notice of appeal to 4 September 2014. Principles governing the right to quiet enjoyment. 1. It is useful to set out the principles governing claims for breaches of the right to quiet enjoyment of the premises. The starting point is s.50(2) of the Residential Tenancies Act 2010 (RTA) which relevantly provides: A landlord or landlord's agent must not interfere with, or cause or permit any interference with the reasonable peace, comfort or privacy of the tenant in using the residential premises. 1. As the Tribunal noted the language of s.50(2) is mandatory and a breach arises irrespective of whether or not the landlord intended to disturb the tenant's enjoyment of the premises. We note that the Tribunal at paragraphs [41] to [43] set out the principles to be applied where the tenant claims compensation based on the landlord's failure to maintain or repair premises, causing an interference with the reasonable peace comfort and privacy of the tenant. In those circumstances the landlord's responsibility is dependent on notice being given; s.63 of the RTA provides that the Tribunal must not determine that a landlord has breached the obligation unless it is satisfied that the landlord had notice of the need for the repair (or ought reasonably to have known of the need for the repair) and the landlord failed to act with reasonable diligence to have the repair carried out. 2. Various cases have decided that the words "reasonable peace, comfort and privacy" must carry their normal English meaning. These cases include the following. 3. In Osman v Pyliotis [2004] NSWCTTT 214 the Consumer Trader and Tenancy Tribunal of NSW (CTTT) upheld a claim that the tenant's ability to use the garage was partially blocked by the activities of the other occupants of the units. The Tribunal accepted that these activities would have an impact on the tenant's peace, comfort and privacy. 4. In Dundas-Taylor v Moon [2002] NSWCTTT 563 the CTTT was satisfied the tenant lost amenity in the use of the premises. The tenant was forced to leave the premises through the conduct of the landlord that was in breach of the terms of a predecessor Act to the RTA. The manner in which the landlord dealt with his food, and personal possessions was in breach of the tenant's right to peace comfort and privacy. His personal goods and effects were dealt with inappropriately. 5. In Kelson v Department of Housing [2002] NSWCTTT 715 the applicant submitted that his right to quiet enjoyment and to reasonable peace, comfort and privacy had been breached by the noise from a bird kept by its owner on the balcony of a nearby unit. The Tribunal noted that: Every noise, interference or inconvenience is not necessarily capable of constituting a breach of quiet enjoyment, or of reasonable peace, comfort and privacy. Some noise is inevitable in urban residential settings, perhaps particularly in a block of units. The contractual right to peace and quiet enjoyment is not absolute, but only what is reasonable in the circumstances. Whether noise or inconvenience amounts to a breach is therefore a matter of degree, taking into account matters such as frequency, timing and severity. (emphasis added) Tenant's submissions 1. The claims for compensation not considered by the Tribunal, which now fall for determination by the Appeal Panel, relate (using the numbering in the tenant's submissions) to the following matters: (2) the skirting boards in master bedroom being bloated and cracked; (3) carpet stains from previous tenant; (4) a lock out of tenant; (5) the failure to fit a tap fitting to on the balcony; (7) security breaches; (8) repeated letters regarding arrears resulting in harassment; (9) the failure to repair/replace an oven; and (10) the provision of a termination notice. 1. Before we deal with each issue, we note that the tenant provided various documents to the Tribunal and to the Appeal Panel. These documents included the following: * a document prepared by her setting out a history of her tenancy. That document concludes by stating that the tenant sought an amount of not less than 5% of the weekly rent for her losses, being a total of $6,580. In later undated submissions the tenant also claimed an additional $500 for plants, pots, and mats she needed "to cover the damage and rotting skirting board" in her unit; however we note that the tenant has not provided any receipts or other documentation evidencing such expenses; * a copy of the residential tenancy agreement. We note that the initial weekly rent for the three bedroom apartment was $390; * a copy of the condition report; * minutes of meetings of the Executive Committee of the Owners Corporation and related correspondence; * a copy of "diary notes" of the managing agent for the complex of units for the period November 2010 to May 2011. We note that these notes, which cover some seven pages, do not contain any entries relating to the tenant or her unit at all. The tenant says the notes demonstrate that other tenants were experiencing similar problems and issues (such as security of the premises, and the lifts not working) to those suffered by her. Therefore she submits that the diary notes corroborate her claims and provide evidence that the landlord knew about her problems; * a copy of a notice of termination dated 26 June 2013, requiring the tenant to give vacant possession of the premises on 1 October 2013. The basis for the termination what is usually referred to as the "no grounds" notice for termination provided for in s.85 of the RTA. That section a provides that a landlord may, at any time, give a termination notice for a periodic agreement. Such a notice must allow the tenant not less than three month's to give vacant possession; * a statutory declaration of Ms Nadia Douglas dated 18 March 2014. Ms Douglas states that she and her husband visited the tenant about eight times over the previous five years. She says that on each occasion there were problems with access to the unit complex (lift not working, keypad not allowing access through external doors). She accompanied the tenant on one occasion in 2009 when they went to Mitre 10 and the tenant bought $500 worth of plants to cover the water marks on her balcony. On one occasion her child slipped over on the water which had pooled on the balcony; * a document described as a statutory declaration of Mr Alan Jackson, undated, unsworn. Mr Jackson states he stayed with the tenant in unit 9 on many occasions. He says he experienced lift outages on a fortnightly and sometimes weekly basis. On occasion the lifts were not working for several hours and this prevented access to the carpark. On another occasion he assisted a tenant living on the top floor who had to gain access to his unit by climbing onto the roof and through the balcony of another unit. He says that another guest, Warradjuri elder Aunty Isobel Coe had to return to her traditional country as access to the building was becoming too difficult for her. He says he is aware that the tenant spent more than $500 on pots and plants "to assist with the water drainage problem on the balcony"; * an email of Ms Bobbie-Marree Barton dated 18 March 2004. Ms Barton states that: Iived in Number 30 in 2007 and during the year I rented with stockdale and lego there were several lift outages. When the lift was out we needed to leave the building via the fire stairs, but were then unable to get back onto our floor and we needed to go outside the building with our roller door key to access the carpark. We would sit at Hungry Jacks for an hour or so. My car would be wet and it could get flooded in the garage part when it rained. * a statutory declaration of Mr David Forley sworn 19 March 2014. Mr Forley says that while he lived in unit 30, the lifts were out of order several times a month, the security door would often be left open due to the resident's access codes not working, and when the fire alarm had been triggered, the fire department had to rely on tenants who had chosen to ignore the alarm and remained in their units, to give them access to the complex. 1. The tenant also filed a six page submission in response to documents provided by the landlord. She asserts that many of the documents provided by the landlord's agent actually support her claim. For instance she says that those documents show that the agent was aware of security problems, lift and access issues, a faulty camera intercom, and water causing damage to other units. Consideration 1. We now turn to the outstanding claims for compensation 2. Skirting boards in master bedroom bloated and cracked The tenant submits that water enters through a window and runs down the sill in heavy rain. She claims that the landlord failed to rectify this problem in the period 2009 to 2013. The landlord submits that "water damage may have resulted in the skirting boards [swelling] somewhat, but this would be an owner responsibility to repair. This does not constitute grounds for compensation". We note that the documents filed by the appellant include tenant's the agent's diary notes for the complex of units for the period from approximately November 2010 to May 2011. These notes do not contain any entries relating to a claim by the tenant about the skirting boards in her bedroom. 3. Therefore there is no evidence before the Appeal Panel that she gave the notice of a problem with the skirting boards in November 2010, save for the unparticularised assertions appearing in her submissions. However, the tenant recognises that the problem existed when she moved in, although it worsened over time. Nor has she provided no photographs to show the damage, and provided no statement setting how this issue affected her use of the premises. In the circumstances we are not satisfied that there should be any award of compensation. 4. Carpet stains The tenant submits that she was forced to purchase rugs to cover stains on the floor coverings caused by previous tenants. She claims that the agent commented on one occasion that the quality of carpet provided by the developer was very poor. We note that the ingoing condition report shows that there was one small brown stain on the carpet of the lounge room, another in the master bedroom and another in the third bedroom, and that all those floor coverings were not undamaged at the time the tenants signed the ingoing condition report. In those circumstances we do not accept the tenant's submission that she was "forced" to purchase rugs to cover those marks. Her claim for compensation must fail. 5. Tenant lockout The tenant claims that in September 2010 a locksmith was called to her unit as the key would not work. The locksmith apparently told her that the building was shifting, that the lock had moved and barrel shifted. She claims that she was unable to access "the building" for several hours. The landlord submits that this issue is outside its control. We agree. There for should be no compensation for this claim. 6. A tap fitting The tenant submits that upon commencement of the lease the agent advised her that tap fittings for the balcony would be installed in the next few months. She says that she kept making enquiries about this for four years. She does not state what she was told in response. She claims that tap fittings were provided for some of the other units. The agent denies any knowledge of tap fittings being requested. Given the lack of evidence before the Appeal Panel this claim must be dismissed. 7. Emergency access keys The tenant claims that the landlord's agent failed to provide her with emergency access keys for access to the unit floor via the fire stairs as required by law. She says that complaints were lodged with the agent and noted by the fire brigade when attending to a fire alarm. This claim is denied by the landlord's agent, who states that, upon receiving her request, the tenant was provided with a key. Given the absence of any other corroborative or independent evidence from the tenant, we consider that this claim should be dismissed. 8. Security breaches Here the tenant raised four separate issues being (1) repeated security breaches to the rear access door resulting in a homeless person residing under the fire stairs for some period of time; (2) the security door providing access to the secure car park remaining broken despite complaints; (3) no alternative access to the car park was provided during lift outages; and (4) keys to the security car park were never provided to the tenant. These claims are not particularised in any way, no details are given of the dates on which the landlord or their agent was informed of these matters, no detailed statement from the tenant is provided and, and save for some evidence in the statutory declarations relied on of a generalised nature, no corroborative evidence given. As to claim (4), again, there is no document provided by the tenant seeking the keys from the landlord. The residential tenancy agreement does not in terms state that the tenant was entitled to a parking space, although we note that appearing as a annexure to the agreement is a photocopy of three keys to her unit on which the words "2 roller door cards" appear. That seems to suggest that security cards for the car park were in fact provided. In the circumstances, given the lack of direct or corroborative evidence, we are not satisfied that any amount of compensation should be awarded for these matters. 9. Repeated letters regarding arrears resulting in harassment The tenant submits that "since winning a claim in the Tribunal in April 2011, the Agent has sent eviction letters every fortnight claiming unpaid rent". This claim is exaggerated. It is correct that the agent appears to have sent the tenant, in the period 3 June 2013 to 16 September 2013, some thirteen invoices for rent said to be owing, but these cannot be described as "eviction letters". They are simply invoices stating the balance of rent owed and requesting that the tenant keep the rent in advance, which is her obligation under the terms of the residential tenancy agreement. The landlord's agent, who has attached a copy of the tenant's ledger to its submissions, submits that such letters are automatically generated whenever a tenant is behind in rent payments. In the circumstances we consider that this claim is misconceived and should be dismissed. 10. Oven repair It appears to be common ground that on 24 June 2013 the tenant informed the landlord's agent that the oven was not working, and it was replaced ten days later. The agent says the reason for the delay was that the landlord asked the agent to obtain a number of quotations for the replacement. The agent submits that although the oven was not working, the tenant was able to utilised the cooktop pending the oven's replacement. This is not disputed in the tenant's reply to the landlord's documents. In the circumstances we are not persuaded that the tenant has established an entitlement to compensation. 11. Provision of termination notice. The tenant submits that the termination was a "form of retribution by the action having been unsuccessful in both previous tribunal hearings." Section 115(1) of the RTA provides that the Tribunal may, on application by a tenant or when considering an application for a termination order or in relation to a termination notice, declare that a termination notice has no effect, or refuse to make a termination order, if it is satisfied that a termination notice given or application made by the landlord was a retaliatory notice or a retaliatory application. The tenant does not state that she made such an application when the landlord's application for termination was heard on 2 October 2013. If she did, then clearly those submissions were not accepted. We are not satisfied that this is a proper claim warranting an order for compensation. Time of application 1. We have considered each of the claims not considered by the Tribunal on their merits, and have concluded each should be dismissed. 2. There is another reason why no compensation should be ordered. Section 190 of the RTA provides that applications relating to breaches of residential tenancy agreements may be made by a landlord or tenant within the period prescribed by the regulations after the landlord or tenant becomes aware of the breach or within such other period as may be prescribed by the regulations (s.190(1)). An application may be made during or after the end of a residential tenancy agreement (s.190(2)). 3. Regulation 22(9) of the Residential Tenancies Regulation 2010 provides that for the purposes of s.190(1) the prescribed period for making an application for an order in relation to a breach of a residential tenancy agreement or proposed agreement is within three months after the applicant becomes aware of the breach. 4. The proceedings in respect of the above claims were commenced by application filed 25 October 2013 (proceedings RT 13/28465). The application states that the tenant sought compensation for "loss of quiet enjoyment for past 6 years". 5. It is quite clear that the proceedings for all of the breaches claimed was commenced well and truly more than three months, and in some cases years, after the applicant became aware of the breach. This does not seem to have been discussed in the Tribunal below, and no submissions were made in respect of this issue in the proceedings before the Appeal Panel. That is to say, the tenant has given no explanation as to why the proceedings were commenced so late, and the landlord has not claimed that the claims were late. Given that no party has referred to this issue, and that the Appeal Panel did not seek submissions about these matters, we have dealt with the matters raised on the basis of the evidence before us. Decision 1. For the above reasons, the Appeal Panel orders that: 1. The time for filing the notice of appeal is extended to 4 September 2014. 2. The appeal is 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: 10 February 2015