Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Jakovljevic v NSW Land and Housing Corporation [2015] NSWCATAP 125 Hearing dates: 27 February 2015 Date of orders: 02 July 2015 Decision date: 02 July 2015 Jurisdiction: Appeal Panel Before: M Harrowell, Principal Member C Fougere, Principal Member Decision: The Appeal Panel makes the following orders: (1) Leave to appeal the decision of the Tribunal made 15 May 2014 out of time is refused; (2) The appeal is otherwise dismissed. Catchwords: Residential tenancy agreement- obligation to repair, Legislation Cited: Civil and Administrative Tribunal Rules 2014 Cases Cited: Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 Texts Cited: Nil Category: Principal judgment Parties: Bosko Jakovljevic (Appellant) NSW Land and Housing Corporation (Respondent) Representation: Applicant: In person Respondent: Ms Sathanapally File Number(s): AP 15/01218 Publication restriction: Unrestricted Decision under appeal Court or tribunal: Civil and Administrative Tribunal of New South Wales Jurisdiction: Consumer and Commercial Citation: Not applicable Date of Decision: 15 May 2014 Before: General Member M Eftimiou File Number(s): SH 14/11690 Reasons 1. This is an appeal by Mr Jakovljevic (appellant) in relation to a decision made by the Tribunal on 15 May 2014 in application SH 14/11690. 2. The appellant appeared in person, assisted by Ms Elez and an interpreter. 3. The respondent was NSW Land and Housing Corporation (respondent). 4. The appellant sought an order that the respondent replace the vinyl flooring in his premises. The claim was dismissed by the Tribunal because the Tribunal was not satisfied that the respondent, who was the landlord, had breached its duty to maintain and repair the residential premises during the term of the residential tenancy agreement. 5. In the notice of appeal the appellant says that he received notice of the Tribunal's decision on "05/2014". However, the appellant did not file a notice of appeal until 6 January 2015. 6. The appellant seeks leave to appeal out of time. This is because proceedings SH 14/11690 were residential proceedings within the meaning of Rule 3 of the Civil and Administrative Tribunal Rules 2014. Consequently, the time limit in which to appeal the original decision was 14 days from the day on which the appellant was notified of the decision or given reasons for the decision, whichever is the later: see Rule 25(4) of the Rules. History of proceedings 1. The appellant had entered into a residential tenancy agreement with the respondent dated 20 January 2009. The residential tenancy agreement was in a standard form containing the usual terms as required by the Residential Tenancies Act 2010 (RT Act). The residential premises, when originally let, apparently contained carpet which was removed at the appellant's request following his complaint to the respondent that the carpet was causing his respiratory difficulties. When the carpet was removed, vinyl flooring was installed as a replacement. This change of floor covering had apparently been made prior to 14 August 2008. After this time, the appellant complained that the property became "unbearably cold". There were also other issues which he raised in connection with the premises and its suitability. 2. On 14 August 2008 an occupational therapist prepared a report on his behalf in relation to various accessibility issues. This report recommended a change in the floor height at the bathroom and front doors to improve accessibility for the appellant. This issue was not the subject of any dispute before the Appeal Panel. 3. However, this report also noted that the appellant had raised with the occupational therapist the issues of the premises being cold and that this was causing the appellant great distress. 4. Following this report the appellant obtained a report from Dr Marantos dated 15 December 2009. In that report, in which the doctor noted the appellant was complaining his property was "unbearably cold" by reason of the change in floor covering, the doctor made the following statement: "At his request I have documented his complaint. Unless there was rising damp, in my opinion lino flooring should not be exacerbating his lung condition. As a respiratory physician I am unable to advise about his arthritis." 1. Thereafter, it appears that the respondent investigated the appellant's complaint concerning the fact that vinyl floor covering had been laid, including the complaint that there was no underlay or that the underlay was inadequate. In a letter dated 15 September 2011 from the respondent to the appellant, the respondent noted that "these inspections have confirmed the vinyl was laid as per specification." 2. There were various communications between the parties and, by letter dated 4 November 2013 the appellant said: "In 2009, the carpet was removed by Housing NSW on request of my lung specialist Dr Peter Marantos. I have breathing difficulties and shortness of breath relating to Asbestosis diagnosed years ago by Dr Marantos. I approached Housing NSW number of times and lodged an internal complaint through Housing NSW Feedback Services …. My complaint was not successful. I am convinced that Housing NSW does not want to hear my statements and reasons for why I keep going with my request for appropriate flooring solution for so many years and nothing has been done to resolve my issue. Having this issue from 2009 my chronic osteoarthritis worsened which resulted in my taking a high dosage of pain killers and wearing shoes at all times throughout the day to keep my feet warm. Replacing the carpet with vinyl was not the best solution which I realised later on. The vinyl layer was directly placed on the concrete which your housing technicians witnessed a number of times coming to my home regarding other repairs." 1. Various other medical evidence additional to that set out above was also relied upon at the original hearing before the Tribunal on 15 May 2014, including from a Dr Gorman. 2. In rejecting the appellant's claim the Tribunal provided the following reasons: "A Medical Assessment dated 14 August 2012 from Dr Gorman has also been provided. Dr Gorman states that the applicant has a requirement of carpet floors in his dwelling, as the cold floors make him worse. A request made to the respondent in 2013 to have the flooring changed was declined as the respondent was not satisfied that the applicant had provided sufficient evidence to support his reasons for change. The respondent however had no objection to the applicant arranging for his own contractor to change the flooring. The medical evidence provided to the Tribunal has not been provided by the applicant to the respondent. An offer to have an Occupational Therapist attend the applicant's property and assess his needs and make recommendations to the respondent was refused by the applicant. A suggestion to appeal the respondent's decision to refuse to change the flooring through the respondent's internal and external appeal process was also declined by the applicant. The respondent submits that the premises meet the applicant's basic needs. The flooring in the premises was upgraded in 2009 to meet the applicant's needs. The Tribunal has no jurisdiction to make orders for the respondent to upgrade premises. The Tribunal heard sworn evidence from the applicant. The Tribunal was assisted by a Serbian speaking interpreter. The Tribunal has jurisdiction to hear and determine the matter. There is a residential tenancy agreement between the parties. The Tribunal's jurisdiction in the Social Housing Division of the Tribunal is limited by the Residential Tenancies Act 2010. The Act provides that a landlord is to provide premises to the tenant that are in a reasonable state of cleanliness and fit for habitation by the tenant. The landlord also has a duty to maintain and repair the premises during the terms of the residential tenancy agreement. The landlord under the Residential Tenancies Act has no obligation to upgrade premises to meet particular medical needs of the tenant. It follows that the Tribunal has no jurisdiction to make an order for the respondent to replace the vinyl with a more suitable flooring if the Tribunal is not able to identify a breach by the landlord of the residential tenancy agreement. The Tribunal with the assistance of the interpreter tried unsuccessfully to explain to the applicant that he needed to appeal the decision of the respondent through the internal and independent external appeal process of the respondent. The applicant was also encouraged to speak to a tenant's advocate and seek assistance in appealing the respondent's decision." Grounds of appeal 1. The appellant said that the Tribunal had not properly considered the medical reports which he had provided and that he had been denied natural justice. He claimed that the Tribunal should make an order for the respondent to carry out repairs and maintenance to the residential premises in accordance with its obligation under section 63 and 65 of the RT Act. 2. The appellant also provided an additional report of Dr Gorman dated 24 October 2014. In that report Dr Gorman said: "I believe that the harder colder floors could certainly explain the worsening of his arthritic symptoms. This is well supported by the literature – for example, I know that for occupation health reasons workers who are on their feet for long periods do so on padded mats as the cold concrete floor worsens symptoms in the leg. I would support changes being made to the flooring which would better suit." 1. It should be noted at this point that the letter from Dr Gorman 24 October 2014 was not part of the evidence before the Tribunal on 15 May 2014, being prepared after the date of the Tribunal hearing. 2. In relation to his application for leave to appeal out of time, the appellant said he had been admitted to hospital twice and had to spend time recovering at home. Also, the appellant said that Dr Gorman was on annual leave "for a month Christmas holidays" which delayed him lodging his appeal as he needed the evidence from Dr Gorman to support his application for an extension of time. Hearing of the appeal 1. The appeal was heard on 27 February 2015. 2. The appellant explained that he had been in hospital from 19 September 2014 until 22 September 2014 and was again in hospital from 18 November 2014 until 24 November 2014. He also submitted that Dr Gorman was absent for one month in December 2014 which delayed him lodging his notice of appeal until after Christmas 2014. 3. When asked by the Appeal Panel why he had taken no action between May and September 2014, the appellant indicated he was waiting to speak to his doctor. The appellant also indicated that prior to September 2014 he was aware that he could appeal the decision of the Tribunal. In this regard he had discussions with his support person Ms Elez, who also made submissions to the Appeal Panel on behalf of the appellant. 4. It was apparent to the Appeal Panel from the submissions made that the appellant had discussed with Ms Elez the reasons for decision in the period of about two weeks after the decision was provided on 15 May 2014. 5. In relation to the substantive grounds of appeal, the appellant submitted that the respondent had breached clause 11 of the agreement, which is the landlord's obligation to keep the residential premises reasonably clean and fit to live in and to keep the premises in a reasonable state of repair considering the age of, the amount of rent paid for the prospective life of the premises. The breach was said to arise because the landlord took the carpet away and put down vinyl on the floor and the vinyl which has been installed is very cold, necessitating the appellant to wear shoes in summer and winter. 6. The appellant relied on various documents. The documents included a brochure about floor covering known as "flotex" which the appellant submitted was a floor covering which should have been installed. The appellant also submitted that the vinyl which had been installed had not been properly laid due to inadequate or unsuitable underlay material. 7. The appellant said that an order should have been made by the Tribunal for the replacement of the present flooring material with a material more suited to his medical condition and that he should receive compensation for the adverse effect on his health. 8. In reply, the respondent indicated that it could not point to any particular prejudice as to why leave should not be granted however the respondent said there is no satisfactory explanation of the delay by the appellant. In relation to the substantive issue concerning the suitability of the vinyl floor covering, the respondent said there was no evidence to suggest that vinyl was not a suitable floor covering and that it had been properly installed. Further, the respondent submitted that the "flotex" documents did not support any claim that the vinyl flooring actually installed was not suitable. 9. In relation to the installation of the vinyl, the respondent said this occurred and the carpet was removed at the request of the applicant and that the failure of the respondent to provide a particular type of floor covering or material is not a failure which amounts to a breach of the residential tenancy agreement, in particular the obligation to keep the premises in a reasonable state of repair. 10. In so far as the appellant otherwise sought to change the floor covering in the premises, this was a matter for which the appellant could make an application to the respondent and any such application would be dealt with in accordance with the respondent's internal policies. In this regard the respondent noted that the appellant may have an internal appeal right to NSW Housing to review any policy decision. Decision 1. The appellant requires leave of the Appeal Panel to appeal the decision of the Tribunal out of time. 2. The principles applicable to the grant of leave were dealt with by the Appeal Panel in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22. At [22] the Appeal Panel said: The considerations that will generally be relevant to the Appeal Panel's consideration of whether to grant an extension of time in which to lodge a Notice of Appeal include: "(1) The discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the appellant - Gallo v Dawson [1990] HCA 30, 93 ALR 479 at [2], Nanschild v Pratt [2011] NSWCA 85 at [38]; (2) The discretion is to be exercised in the light of the fact that the respondent (to the appeal) has already obtained a decision in its favour and, once the period for appeal has expired, can be thought of as having a "vested right" to retain the benefit of that decision - Jackamarra v Krakouer (1998) 195 CLR 516 at[4], Nanschild v Pratt [2011] NSWCA 85 at [39] and, in particular, where the right of appeal has gone (because of the expiration of the appeal period) the time for appealing should not be extended unless the proposed appeal has some prospects of success - Jackamarra at [7]; (3) Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider: (a)The length of the delay; (b)The reason for the delay; (c)The appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and (d)The extent of any prejudice suffered by the respondent (to the appeal), - Tomko v Palasty (No 2) (2007) 71 NSWLR 61at [55] (per Basten JA) but note also [14], Nanschild v Pratt [2011] NSWCA 85 at [39] to [42]; and (4) It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable - Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at [14] (per Hodgson JA, Ipp JA agreeing at [17]) and Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53 at [58] - [59]." 1. Applying these principles to the present circumstances, in the opinion of the Appeal Panel leave to appeal should be refused for the following reasons: 1. The decision of the Tribunal was made on 15 May 2014. An appeal was not lodged until 9 January 2015, a period of more than seven months. 2. Whilst the Appeal Panel accepts that the appellant may have been under some incapacity and/or was unable to provide a relevant report from his doctor during the period September 2014 until the end of the year, no explanation is given as to why an appeal was not lodged before September 2014. In this regard the appellant said he was aware of the decision of the Tribunal shortly after 15 May 2014 and knew he had a right of appeal at around this time. No explanation has been provided by the appellant to satisfactorily explain why an appeal was not lodged during this period of time. 3. While the respondent was unable to identify any significant matter of prejudice, the appellant has not pointed to any factors which would indicate that the refusal of leave would "work an injustice" upon him. 1. The final issue to consider in relation to whether time should be extended is the appellant's prospects of success. The respondent has received a decision in its favour and time should not be extended unless the appellant has some prospects of success. 2. The appellant's application was that the respondent had breached its obligations as a landlord: 1. to provide and maintain the residential premises in a reasonable state of repair; and/or 2. to provide residential premises in a reasonable state of cleanliness and fit for habitation by the tenant. 1. The reasons of the Tribunal indicate that the Tribunal considered the evidence and determined that there was no breach by the respondent of its obligations. 2. The evidence provided in the appeal does not suggest that the premises provided were not in a reasonable state of repair or not in a reasonable state of cleanliness and fit for habitation. Further there was evidence that an inspection of the vinyl following a complaint by the appellant confirmed the vinyl was properly laid. 3. There is no special condition in the residential tenancy agreement to impose upon the landlord an obligation to change the floor coverings either by providing different underlay or changing the floor coverings all together in order to accommodate a particular medical condition of the appellant. Consequently the Appeal Panel is not satisfied the appellant has reasonable prospects of success. 4. While the appellant may have a right to apply to the respondent to make a decision in connection with modifications to the residential tenancy premises. This right arises under an internal policy of the respondent. It is not a right arising under the residential tenancy agreement. Any policy decision may be reviewable through any internal review processes of the respondent. However, the ability to make such an application does not mean that the failure of the respondent to change the floor coverings because it rejected a request to do so is an issue which can be resolved by application to the Tribunal under the RT Act. 5. In these circumstances, the Appeal Panel is not satisfied that leave should be granted to appeal out of time. Therefore the appeal should be dismissed. Orders 1. The Appeal Panel makes the following orders: 1. Leave to appeal the decision of the Tribunal made 15 May 2014 out of time is refused; 2. The appeal is otherwise 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: 02 July 2015