Civil and Administrative Tribunal New South Wales Medium Neutral Citation: NSW LAND AND HOUSING CORPORATION v WOODWARD [2015] NSWCATAP 164 Hearing dates: 12 May 2015 Date of orders: 12 August 2015 Decision date: 12 August 2015 Jurisdiction: Appeal Panel Before: P.R. Callaghan SC and A. Britton, Principal Members Decision: Allow the appeal to the extent specified below. Note that the items specified in Order 1 of the appealed decision have been completed and that Order 1 has by its own terms ceased to operate. Set aside Order 2 in the appealed decision and in its place: Declare that contrary to s52(1) of the Residential Tenancies Act 2010 the Appellant as landlord failed to provide to the Respondent as tenant the subject premises fit for habitation by the Respondent in that on 26 March 2014 in the bathroom of the subject premises the following items required attention: Remove shower curtain rail; Install fixed panel and door as shower screen; Turn vanity 90 degrees to right; Move mirror cabinet; Replace bathroom door with a sliding cavity door; Move bathroom door and replace linen cupboard door with bathroom door. Order that the Appellant perform as soon as is practicable the work listed in the preceding paragraph; Order that by way of compensation to the Respondent the rent payable by the Respondent to the Appellant under the Residential Tenancy Agreement in respect of the subject premises be reduced by $20.00 per week from 25 April 2014 until the Appellant has completed the above work; and Grant liberty to apply in respect of the orders in paragraphs (a), (b) and (c). Catchwords: Appeal – residential tenancy – question of law – reduction of services – fitness for habitation by the tenant – abatement of rent – order for performance of work – compensation – liberty to apply – model litigant Legislation Cited: Civil and Administration Tribunal Act 2013 (NSW) Residential Tenancies Act 2010 (NSW) Residential Tenancy Regulation 2010 (NSW) Cases Cited: Bannister v Cheung [2014] NSWCATCD 105 Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378 Finn v Finato [2004] NSWCTTT 179 Hampel v SA Housing Trust [2007] SADC 64 Kline v NSW Land and Housing Corporation [2014] NSWCTAP 41 Proudfoot v Hart (1890) 25 QBD 42 Texts Cited: Anforth, Christensen & Bentwood, Residential Tenancies, Law & Practice NSW 6th edn Ritchie's Uniform Civil Procedure NSW Category: Principal judgment Parties: Appellant: NSW Land and Housing Corporation Respondent: Julie Anne Woodward Representation: Appellant: J. O'Connor, Counsel N. Cureton, Solicitor Respondent: M. Robertson (Agent – Verto South West Tenants Advice Service) File Number(s): AP 14/61429 Publication restriction: Nil Decision under appeal Court or tribunal: NSW Civil Administrative Decisions Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 12 December 2014 Before: A.H. Morris, General Member File Number(s): SH 14/29375 reasons for decision Background 1. On 31 October 2013 the NSW Land and Housing Corporation as landlord ("the appellant") and Ms Julie Anne Woodward as tenant ("the respondent") entered into a written Family and Community Services Housing NSW Residential Tenancy Agreement in respect of free standing residential premises at [XXX] ("the subject premises"). An informal arrangement was made between the parties on or about that date concerning the removal of the bath in the subject premises and the installation of a shower screen and that rent under the tenancy agreement was to be abated until bathroom modifications were completed. Apparently the appellant took the view that the modifications were completed in December 2013 and it then terminated the rent abatement. The respondent did not enter into occupation of the subject premises until January 2014. Ms Miranda Robertson of Verto – South West Tenants Advice Service commenced to assist the respondent in January 2014. Communications between the appellant and the respondent or Ms Robertson included a letter of 30 January 2014 from the appellant to Ms Robertson, the substantive parts of which read: "As we all acknowledge, Ms Woodward accepted and commenced a tenancy at (the subject premises) on 4 November 2013. The rent was then abated while bathroom modifications were carried out. Rent abatement period was from 4 November to 16 December 2013 only. As Ms Woodward accepted the property and commenced her tenancy on 4 November 2013, she is required to abide by the signed tenancy agreement. Conditions of the tenancy agreement include payment of rent in advance and personal occupation of the property. The bathroom modifications were completed on 16 December 2013 and have been assessed to meet the needs of Ms Woodward. Ms Woodward is however welcome to submit an Occupational Therapist report if further modifications are required." 1. It seems (principally from submissions made at the appeal hearing by Ms Robertson) that the appellant had in the meantime instituted proceedings in the Consumer Trader and Tenancy Tribunal seeking termination of the tenancy on account of non-payment of rent; and that at a directions hearing in those proceedings (they having been transferred to the Consumer and Commercial Division of this Tribunal on 1 January 2014 as SH14/0818) it was ordered that the respondent should commence paying rent together with amounts towards the arrears and it was agreed that Ms Woodward and representatives of the appellant would meet at the subject premises to, Ms Robertson says in her written submissions in this appeal, "discuss the repairs required to the already modified residential premises, to ensure the landlord's compliance of the Residential Tenancy Agreement". That meeting took place on 26 March 2014. The respondent's position (according to a statutory declaration by her in the proceedings the subject of this appeal – "the subject proceedings") is that: "On 26th March 2014, Tim Dunnet, Senior Client Service Officer, Housing NSW, Steve, technical officer Housing NSW and Miranda Robertson, Tenancy Consultant, South West Tenants Advise Service, attended (the subject premises), as directed by the NSW Civil and Administrative Tribunal. After viewing my bathroom and the safety and access restrictions the bathroom, kitchen and rear of property, caused me, it was agreed that the following would take place within the following 30 days: Remove shower curtain rail Install fixed panel and door as shower screen Turn vanity 90 degrees to right Move mirror cabinet Replace bathroom door with a sliding cavity door Move bathroom door and replace linen cupboard door with bathroom door Install new exhaust fan Patch holes from bathroom modifications Repair window latch in lounge room so window locks Clip front of gas heater to rear of unit Repair latch on gate Install path at rear of house for T to access house from driveway." 1. On 15 April 2014 Mr Dunnet (referred to in the respondent's statutory declaration above) emailed Ms Woodward: "I have received instructions that Housing will require an occupational therapist's report in order to complete the discussed modifications to the bathroom. I have pasted in the policy link to modifications below. The work we discussed is considered a major modification, you will note the policy specifically states that modifications to a bathroom fall into this category." 1. A registered occupational therapist from Hawker in the ACT assessed the respondent and her home environment on 1 July 2014 and produced two reports in respect of that assessment, respectively bearing dates 3 July 2014 and 12 August 2014. Previously, on 13 May 2015, the Senior Occupational Therapist at Queanbeyan District Health Service had advised in writing that the appellant "was not a current client of the Health Service in February 2014 and therefore was not prioritised for OT services" and that clients such as the respondent should "discuss their accommodation issues with the relevant housing agency and/or access the services of a private practitioner." Subject proceedings 1. The subject proceedings were commenced by Ms Woodward by a Social Housing Application bearing date 7 May 2014 filed in the Consumer and Commercial Division of this Tribunal. The application specified the orders sought thus: "1. 45 – Rent abated from 16th December 2013 – 7th February 2014 = 54 days at $13.67/day = $738.18. 2. 44(1)(b) – Rent reduction for withdrawal of goods or services within the residential premises. AND/OR 3. 187(1)(c) – Compensation due to breach of the Residential Tenancy Agreement. 65(1)(a) – Landlord carry out repairs. 187(1)(d) – Compensation." 1. At a directions hearing on 9 July 2014 it was ordered, among other things, that: "By consent, the landlord shall undertake the following repairs on or before 10 September 2014; install a reachable latch to the gate and the side of the house; install a path at rear/side of the house; and replace lino floor in kitchen and dining room." 1. A hearing, of comparatively short duration, took place on 10 September 2014. The appellant has had the audio tape of that hearing transcribed and tendered a copy of the transcript at the appeal hearing. Ms Robertson appeared on 10 September 2014 for, and with, the respondent (the applicant in the subject proceedings) and Mr Dunnet appeared for the appellant (the respondent in the subject proceedings). Among the material before that hearing were the respondent's statutory declaration and the two Occupational Therapist's reports which we have referred to above. 2. We note some other aspects of the hearing: 1. The Occupational Therapist's report of 3 July 2014 dealt with a review of the respondent's bathroom in respect of which it said that "it became apparent that there are several issues which are compromising her safety and exacerbating her health conditions: 1. (i) Shower floor is higher than bathroom floor with insufficient grading for water run-off. As a result the water from the shower runs over the rubber water retention barrier across the bathroom floor and under the vanity. This places Ms Woodward at significant risk of slipping and falling on the bathroom floor. She has already slipped on the wet floor on one occasion. This also means that Ms Woodward needs to mop her bathroom floor on a daily basis, including under the vanity. This bending and twisting motion exacerbates her back pain and vertigo. 2. The vanity is positioned facing the shower recess. As a result, Ms Woodward needs to stand on the rubber barrier to access the vanity and use the mirror. The angle of the rubber barrier tilts her forward in standing and causes an increase in her back pain. To eliminate this, Ms Woodward tends to stand at the side of the vanity, however this places her in an asymmetrical position, which again exacerbates her back pain and vertigo. It also means that she is unable to use the vanity mirror. 3. The toilet is positioned too close to the side wall (24cm from centre of bowl to side wall. As a result, Ms Woodward does not have sufficient room to maintain personal hygiene while seated on the toilet and therefore tends to sit sideways on the toilet. This means that she is unable to use the rail to assist with transfers. 4. There is limited circulation space within the bathroom. Ms Woodward reports that when she has episodes of severe vertigo, she needs to sit down in the bathroom while the attack passes. At present, there is insufficient space within the bathroom to position a chair for this purpose. 5. The light switch is positioned behind the bathroom door, which is difficult for Ms Woodward to access, particularly at night. 6. The exhaust fan does not appear to be functioning correctly and makes a loud rattling noise when turned on. As the fan is linked to the same switch as the light, Ms Woodward frequently does not switch either on when entering the bathroom. She finds the excessive noise from the fan disrupts her sleep and makes it difficult for her to fall back to sleep after going to the bathroom during the night. This places her at risk of falling when accessing the bathroom in the dark." 7. The report concluded by stating that its purpose was to highlight the immediate safety concerns regarding the bathroom and that a more comprehensive report would be produced later "addressing these issues and providing recommendations for modifications to improve Ms Woodward's safety, quality of life and level of function". 1. The Occupational Therapist's report of 12 August 2014 was more extensive than that of 3 July 2014. It commenced with a comprehensive assessment over a few pages of the respondent's home environment covering matters such as her medical background, domestic tasks and home situation; it repeated the matters pertaining to the bathroom as set out in the earlier report and then discussed other matters contributing to the appellant's functional difficulties in the kitchen, the bedroom and generally; it went on to make extensive recommendations commencing: "I believe the best outcome for Ms Woodward would be achieved by extending the back wall of the house (bathroom and back bedroom) a minimum of 800mm to the level of the dining room window. If practical, extension to the level of the back door would provide an even better outcome in terms of space and addressing the issues outlined above. In addition to this extension, an extension of the kitchen to encompass the current laundry and back verandah would significantly improve access within the kitchen. The laundry could then be located within the kitchen/meals area in a European-style laundry (concealed by bi-fold doors)." The report then noted that any such major modifications or extensions would take considerable time to implement and recommended the following: "minor modifications to improve Ms Woodward's safety and quality of life in the short term": "(a) Installation of tubular steel handrail (900mm high from step nosing) to replace timber balustrade on left side ascending front steps. Diagram with rail dimensions can be provided by OT if required. (b) Installation of tubular steel handrail on right side ascending back steps. Installation of glass shower partition between shower and vanity and glass pivot door to front of shower to prevent water from running over water retention barrier. Relocation of vanity (90 degree rotation) and mirror to shower wall rather than outside wall of house. This will enable Ms Woodward to stand directly in front of vanity when undertaking grooming tasks thus minimising bending and twisting motions which exacerbate back pain. Installation of cavity slider to replace current swing door into bathroom. This will improve access within the bathroom. Replacement of knot-style door handles with lever handles. External venting of rangehood to prevent fumes from blowing back into kitchen. Replacement of kitchen and laundry taps with lever or mixer taps. Replacement of nylon carpet throughout house with nature fibre carpet with thick underlay to provide extra cushioning and reduce fumes from heater." 1. (c) There was discussion about the meeting at the subject premises on 26 March 2014 with the respective positions of Ms Robertson and Mr Dunnet in relation to that being indicated, sufficiently for present purposes, by the following comments by Ms Robertson (at Transcript p15) referring to Ms Woodward's statutory declaration set out in paragraph 2 above: "…Tim Dunnet and myself attended the property and after viewing the bathroom and the safety and access restrictions to the bathroom, it was agreed that those items would be carried out."; and by Mr Dunnet (at T.20 and T.23): "Yes, so we attended. We agreed on some modifications to be done to the bathroom. I took that fact to my superiors. They had a look at what we had agreed on and said that they would require an occupational therapist's report to ensure that whatever work we did do would be suitable for the tenant. We didn't want to go down the track of moving things around in the bathroom if it wasn't going to be suitable again." … "…It's not something that we would like to deal with through the tribunal, we would like to deal with it under our modifications policy. With due respect, I don't think the tribunal has authority to order upgrades of a property." … "In summing up, we believe that the bathroom does meet the building code and does meet the requirements of Housing NSW. It may not specifically meet Ms Woodward's needs, but I don't believe that is a matter for the tribunal to decide, we can do that through policy." 1. On 12 December 2014, the Tribunal's decision was published that: "In respect of the lease between Housing New South Wales and Julie Anne Woodward in respect of (the subject premises), rent is abated as follows: In the sum of $8.00 per week from 10 September 2014 (a) until the completion of the replacement of the lino in the kitchen and the dining room and the rectification of the path at the side of (the subject premises). (b) In the event that one is finalised before the other, the rent abatement continues in its entirety until the completion of both of these matters. Compensation by way of rent reduction of $20.00 per week from 25 April 2014 until repairs/modifications are made in conformity with the occupational therapist's report dated 1 July 2014." 1. The Tribunal member published reasons for the decision, significant aspects of which we will now detail. In relation to the second order, the member considered (commencing at [14]) the expression "fit for habitation" as used in s52(1) of the Residential Tenancies Act 2010 (NSW) ("RTA") where it is provided that as one of a landlord's general obligations for residential premises, "a landlord must provide the residential premises in a reasonable state of cleanliness and fit for habitation by the tenant." In that regard, the member in his reasons referred to Menashi v Ly [1997] NSWRT 162 and Finn v Finato [2004] NSWCTTT 179. He cited at [15] a passage set out in Finn v Finato at [19] said there to be from McLeish v F.T. Eastment & Sons Pty Ltd (1970) 91 WN (NSW) 268 with reference to s25(1) of the Residential Tenancies Act 1987 which, Finn v Finato said at [16], required a landlord to provide a property in a reasonable state fit for human habitation, that it "must both import such a state of repair that the premises might be used and dwelt in, not only for safety, but for reasonable comfort, by the class of persons by whom and for the sort of purpose which, they were to be occupied…". (That reference in Finn v Finato to McLeish v F.T. Eastment & Sons Pty Ltd seems to have been in error and we will explain this later). The reasons continued: "16. Although Finn refers to 'comfort', it is not too much of a stretch to extend it to cover the known needs of the tenant to whom it is leased. The evidence in this matter is clearly that the tenant's needs were a known quantity, and the house was indeed initially modified for these specific needs. 17. In general, if the respondent had not entered into the needs issue of this matter, it could be said that no obligation need attach to it other than to make the house objectively suitable for the ordinary tenant. But in taking on board the tenant's special needs, I hold that the respondent is obliged to prepare the house to take account of the needs of the particular tenant. 18. Further evidence for this proposition lies in the letter of 30 June (sic, query January) 2014 (see above) where it actually invites the tenant to submit further needs evidence. 19. This letter is problematic. On the one hand it effectively signals to the tenant that bathroom work is all finished. But on the other, it invites her to submit evidence to justify future work. If I were a tenant receiving that letter, in those circumstances, I would assume that the letter is indicating that the work had reached a waypoint, rather than finality. But with the best will in the world, I could not assume that it implied that more work would be done in this 'round'. It would require a 'renegotiation' based on the evidence invited from the respondent's occupational therapist. 20. The effect of this is that I do not find that there are grounds for rent abatement in respect of the bathroom modification. But I can find that the applicant, having taken up the invitation of 30 January 2014 has presented clear and compelling evidence that she has a need for further work to be done in the premises. And this involves a question of compensation for the ongoing lack of safety in the bathroom. 21. I note that in correspondence of 15 April 2014 the respondent appeared to resile from the position that it would – if properly evidenced – do what was required, and indeed what had been effectively promised on 26 March 2014, because of a need to comply with its 'Major Modifications Policy'. I do not consider that this is an appropriate response by the respondent. I take the view that on 30 January 2014 the respondent invited the applicant to submit her occupational therapist's assessment as to what further modifications were required, and that subject to the applicant tenant abiding by the lawful terms of her lease, and (presumably) the respondent conducting an objective assessment of the occupational therapist's views, the applicant has a right to expect that the work will be performed. This was the offer by the respondent, and it cannot now be subsequently introduce conditions not made known to the applicant at the outset. 22. In saying this, I may be misinterpreting Mr Dunnet's letter (sic, query email) of 15 April 2014. He may in fact merely be asserting the basis for his request for the report. But either way, I take it that pursuant to my understanding of Finn, the respondent is indeed obligated to ultimately carry out these improvements. … 25. I also determine that the question of the bathroom safety attracts a compensation allowance by way of rent reduction of $20.00 per week from 25 April 2014 until repairs/modifications are made in conformity with the occupational therapist's report. This date is selected because it was on the 26 March 2014 that Mr Dunnet made the agreement with Ms Woodward as to work and timeframe, and it was then noted that it would all be done within 30 days of that date. 30 days from 26 March is 25 April. 26. I leave it to the parties to work out how this will be applied." 1. In relation to the first order, these reasons were given: "23. I also note that Member Lennard ordered on 9 July 2014 by consent that the respondent would within 2 months install a reachable latch to the side gate, and a path at the rear of the house, as well as replace the lino floor in the kitchen and dining room. I understand that the latch has been replaced, but as at the date of the hearing, neither the lino nor the path has been attended to. 24. I accordingly award an ongoing abatement for these items in the sum of $8.00 per week from 10 September 2014 until the matters are rectified." Appeal 1. This appeal was instituted by Notice of Appeal dated and filed 23 December 2014. That Notice specified the grounds of appeal thus: "Orders made outside the power of Tribunal. Orders made outside jurisdiction of Tribunal. Tribunal took into account irrelevant considerations." The Notice stated that leave to appeal was not being sought, nor was a stay of the orders. The appeal is thus confined to "any question of law". (s80(2)(b) Civil and Administrative Tribunal Act 2013, Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378 at [3]). 1. It is necessary for the Notice of Appeal "to identify precisely the particular question or questions of law" (Ferella at [22]). The generality of the articulation of the identification of those grounds of appeal did not fulfil that requirement and in her written submissions in this appeal Ms Robertson correctly complained about this and in that regard correctly drew attention to the appellant's position as a model litigant (Kline v NSW Land and Housing Corporation [2014] NSWCATAP 41). Nevertheless, from the appellant's written submissions and debate between the Appeal Panel and Counsel for the appellant at the appeal hearing it appears that the questions of law sought to be advanced by the appellant might be adequately expressed thus: 1. whether in respect of order 1 in the appealed decision, there was any evidence, on which, in law, there could have been a finding that there had been a reduction or withdrawal of facilities provided with the residential premises, within s44(3) of the RTA; 2. whether order 1 in the appealed decision, to the extent that it expressed its continuation to be until the completion and rectification of the specified items, contravened s44(6) of the RTA in that such continuation might exceed the 12 months period specified in that sub-section; 3. whether in respect of order 2 in the appealed decision there was a failure properly to construe s52(1) of the RTA in that regard or excessive regard was had to the respondent's personal situation and that sufficient regard was not had to the nature of the items in question as modifications rather than repairs ; 4. whether in respect of order 2 in the appealed decision there was any evidence on which, in law, there could have been a finding that there was an agreement made by the appellant on 26 March 2014 to complete various items within the bathroom of the subject premises; 5. whether order 2 in the appealed decision was contrary to s187(4) of the RTA in that it involved an excess of the amount prescribed by clause 23 of the Residential Tenancy Regulation 2010, namely, $15,000.00; and 6. whether order 2 in the appealed decision, to the extent, if any, that it may refer to the occupational therapist's report dated 12 August 2014 was made outside the relief claimed by the respondent in the subject proceedings and without notice to the appellant, such that a denial of procedural fairness occurred. We will use those questions as a guide in our consideration of what was raised by the parties in the appeal hearing. Consideration 1. As we have detailed in the Subject Proceedings section of this decision, and as the Tribunal member noted in the appealed decision, a consent order was made at a directions hearing on 9 July 2014 that certain repair items at the premise were to be undertaken by the appellant on or before 10 September 2014 and some of them were still outstanding on 10 September 2014. Clearly enough on just those facts a finding was open that there had been a reduction or withdrawal of facilities provided with the premises within s44(3) of the RTA. Order 1 in the appealed decision cannot properly be challenged under question (a) in the paragraph above. 2. Also in relation to order 1 in the appealed decision, s44(6) of the RTA is relied on by the appellant, providing: "An order by the Tribunal specifying a maximum amount of rent: has effect for the period (of not more than 12 months) specified by the Tribunal; and binds only the landlord and the tenant under the Residential Tenancy Agreement or proposed Residential Tenancy Agreement under which the rent is payable." To the extent that it is put that order 1 constituted a rent reduction order which exceeded the power in s44, it is correct that the order did not expressly recognise the time limitation in s44(6). Nevertheless, at the appeal hearing it was agreed between the parties that the items specified in that order had been completed by then. Therefore, by its own terms, the order had ceased to operate and had not exceeded the 12 months limitation. We do not see that beyond noting that situation, it is appropriate for us to deal further with order 1 or question (b). 1. As to order 2, an initial problem which arises (and is covered by question (f)) is the reference in Order 2 to "the occupational therapist's report of 1 July 2014". As we have indicated above, there were two reports from the Occupational Therapist, dated respectively 3 July 2014 and 12 August 2014, each of which related to the inspection by the Occupational Therapist of the premises on 1 July 2014. There is no report actually "of 1 July 2014". A concern was raised by the Counsel for the appellant that to the extent that that reference in order 2 may have been to the Occupational Therapist's report of 12 August 2014, it related matters beyond those in respect of which relief had been sought by the respondent (as applicant in the subject proceedings). That issue was effectively removed by confirmation given to the Appeal Panel at the appeal hearing on behalf of the respondent that she sought at this stage no more work in the subject premises beyond items listed in the respondent's statutory declaration of 26 March 2014 detailed above in the Background section of this decision, and by the nomination on behalf of the respondent within that list of items still requiring attention. 2. In his submissions relevant to question (c), Counsel for the appellant referred to Finn v Finato (as referred to in the reasons for the appealed decisions set out above in the Subject Proceedings section of this decision), Partridge v Maidi Pty Ltd [2013] NSWCTTT 390 and Bannister v Cheung [2014] NSWCATCD 105. In particular, in respect of Finn v Finato, Counsel added to the repetition by the Tribunal member in the reasons for the appealed decision, of a quotation said in Finn v Finato (apparently, as we have said, in error) to be from McLeish v FT Eastment & Sons Pty Ltd, the concluding part of that quotation: "The conclusion I draw…is that the landlord is obliged to hand the premises over to the tenant, at the commencement of the lease, in a reasonable state of repair having regard to its age, rent payable and the prospective life of the premises, and the state of repair must at least meet the minimum standard inherent in the contemporary understanding of the term 'fit for habitation'." The quotation in Finn v Finato was stated there to be from McLeish v F.T. Eastment & Sons Pty Ltd and was said to have been based in that case on Proudfoot v Hart (1890) 25 QBD 42. Unfortunately, the McLeish case does not contain such a quotation, does not refer to Proudfoot v Hart, and does not relate to any tenancy situation. The first part of the quotation from Finn v Finato (set out in the reasons for the appealed decision) is in fact from Proudfoot v Hart at pp50-51 where Lord Esher M.R. repeated a jury direction by Alderson B. in Belcher v Mackintosh 2 Moo. & R. 186, as to the law with respect to a covenant by the lessee to put premises into "habitable repair" and so to deliver up the same at the end of the lease. The second part of the quotation in Finn v Finato as referred to by Counsel for the appellant in his submissions to us and also repeated elsewhere, for example in Bannister v Cheung at [19], is from a paragraph in the decision in Menashi v Ly in which decision there was earlier reference to Proudfoot v Hart. 1. In respect of s52 we make some initial comments: 1. While the application was, perhaps in this aspect, instituted with a reference to "breach of the Residential Tenancy Agreement", the alleged breach was, not inappropriately, treated (e.g. in the appealed decision at [14]) as a breach by the appellant of s52(1) of the RTA. Section 52(4) provides that "this section is a term of every residential tenancy agreement". 2. As noted in the appealed decision and in the submissions of Counsel for the appellant, there have been numerous decisions in this Tribunal and predecessor Tribunals dealing with the concepts of fitness for habitation and state of repair as referred to in the RTA and predecessor residential tenancy legislation. We have given due consideration to those decisions, most of which centre on their own facts. There are reasonably comprehensive coverages of some of those decisions and cases in other jurisdictions dealing with similar questions in Bannister v Cheung [2014] NSWCATCD 105 at [10] to [22] and in Anforth, Christenson & Brentwood, Residential Tenancies Law & Practice NSW 6th edn at [2.52.1] to [2.52.3] and [2.63.5], to which we have referred 3. In the RTA the concepts of fitness for habitation and state of repair are dealt with separately in ss52 and 63 respectively, in terms similar to s25(1)(a) and (b) of the Residential Tenancies Act 1987. The provision concerning fitness for habitation in s52 speaks of premises which are fit for habitation by the tenant. While there is no qualifying epithet like "reasonable" for the extent of the fitness, compliance with the requirement should be assessed objectively. Nevertheless the habitation, the fitness of which has to be assessed, is that for "the tenant" and the particular situation of that person is appropriate to be taken into account. 1. A significant aspect of the situation of the respondent in this appeal is that she suffers from medical problems by reason of which, as the Occupational Therapist said in her report of 3 July 2014, the condition of the bathroom in the premises is "compromising her safety and exacerbating her health conditions"; the Occupational Therapist also noted in that report, in particular, that there was "significant risk of (the respondent) slipping and falling on the wet floor" and that "she has already slipped on the wet floor on one occasion". Included in the various decisions which we have considered is this conclusion which we deem to be apposite here, in Hampel v South Australian Housing Trust [2007] SADC 64 at [63]: "In my opinion a house is unfit for human habitation if an occupier could be expected to suffer physical injury or injury to health from the ordinary use of the premises." Those medical problems of the respondent were, it is apparent, well disclosed to the appellant, particularly by way of a substantial report by a medical practitioner dated 24 September 2012. Any assessment, given this material, of the fitness of the subject premises for habitation by the respondent, as the tenant of the subject premises, could not be said to have been merely subjective. We do not see that there would be a misconstruction of s52 of the RTA by such regard for the respondent's particular situation. Nor do we see any legal fault on this issue in the appealed decision, in particular in paragraph 17 which we have set out above in the Subject Proceedings section of this decision and which we repeat: "17. In general, if the respondent had not entered into the needs issue of this matter, it could be said that no obligation need attach to it other than to make the house objectively suitable for the ordinary tenant. But in taking on board the tenant's special needs, I hold that the respondent is obliged to prepare the house to take account of the needs of the particular tenant." Accordingly, we are of the opinion that the first part of question (c) should be answered in the negative. 1. We do not see that a difference which the appellant apparently seeks to make between "modifications" and "repairs" to the subject premises is to the point. It is correct that the reasons in the appealed decision used the expression "modifications" (e.g. in [20]), that Order 2 spoke of "repairs/modifications", that the Occupational Therapist's report used "modifications" on occasions, and that the appellant uses the "modifications" as a concept e.g. in its "Major Modifications Policy". Nevertheless, as we have sought to indicate, the question is whether the subject items in the bathroom in the subject premises, however named, would, unless attended to, render the subject premises not "fit for habitation by the tenant". This is not (despite the reference to s65(1)(a) in the respondent's application) a matter to be considered under the repairs provisions under Part 3 Division 5 of the RTA. Accordingly, the second part of question (c) should also be answered in the negative. 2. Consideration of question (d) could usefully start by reference to the appealed decision at paragraphs 16 to 22 (set out above in the Subject Proceedings section of this decision) where the Tribunal Member canvassed evidence before him and at [25] where he said that "…it was on 26 March that Mr Dunnet made the agreement with Ms Woodward as to work and timeframe…". To the evidence there noted by the Member we would add the references we have included earlier in this decision to Ms Woodward's statutory declaration set out in paragraph 2 of this decision and the comments on transcript by Ms Robertson and Mr Dunnet set out in paragraph 8(c) of this decision. We find that the Member's decision concerning this so-called agreement ("acknowledgment" or "acceptance" would have been two other adequate descriptions) unexceptional and that there was ample evidence to make the finding concerning it. We answer question (d) accordingly. We confirm that we see the respondent's entitlement to relief in respect of these items as based on breach of s52 of the RTA rather than breach of such an agreement. 3. Section 187 of the RTA constituted an appropriate base for Order 2. As referred to in question (e) there is, however, a monetary limit of $15,000 prescribed (Residential Tenancies Regulation 2010, clause 23) in respect of orders under that section for compensation or performance of work. It is correct that Order 2 in its terms did not refer to that monetary limit. While there was no direct evidence of the cost of the work to be performed, it seems to us that the confinement of the items to be attended to, to those in the bathroom as nominated to us on behalf of the respondent, limits them to items which are not particularly significant and which should involve a cost unlikely to exceed $15,000. Also, given that compensation at the rate of $20 per week amounts to only about $1,000 per year, the $15,000 limit is unlikely to be exceeded on that account. If, however, any problems were to arise in this regard such as to require further Tribunal assistance we anticipate that they could be dealt with pursuant to a reservation of liberty to apply (which should give the Tribunal sufficiently wide implementation assistance in respect of the orders – see, for example, Ritchie's Uniform Civil Procedure NSW at [36.16.65] and [36.16.70]). We add that Counsel for the appellant mentioned to us the possibility of potential problems with compliance with the Building Code of Australia and/or additional local government requirements. Any problems of that type could also be brought back to the Tribunal if necessary, under liberty to apply. The Tribunal expects, however, that the appellant as a model litigant would seek to obviate or minimise any difficulties in respect of the subject work. We also add that with reference to Ferguson v Miles [2012] NSWCTTT 488 and to a section in Anforth, Christensen and Taylor, the appellant's submissions did refer to the measurement of compensation to be awarded; those submissions were not developed at the appeal hearing and in any event, did not raise any question of law; and we see no reason to qualify the rate of compensation ordered in the appealed decision. Conclusion 1. In the result, we are of the opinion the orders made in the appealed decision require some qualification as we have detailed above. Accordingly, we 1. Allow the appeal to the extent specified below. 2. Note that the items specified in Order 1 of the appealed decision have been completed and that Order 1 has by its own terms ceased to operate. 3. Set aside Order 2 in the appealed decision and in its place: 1. Declare that contrary to s52(1) of the Residential Tenancies Act 2010 the Appellant as landlord failed to provide to the Respondent as tenant the subject premises fit for habitation by the Respondent in that on 26 March 2014 in the bathroom of the subject premises the following items required attention: 1. Remove shower curtain rail; 2. Install fixed panel and door as shower screen; 3. Turn vanity 90 degrees to right; 4. Move mirror cabinet; 5. Replace bathroom door with a sliding cavity door; 6. Move bathroom door and replace linen cupboard door with bathroom door. 1. Order that the Appellant perform as soon as is practicable the work listed in the preceding paragraph; 2. Order that by way of compensation to the Respondent the rent payable by the Respondent to the Appellant under the Residential Tenancy Agreement in respect of the subject premises be reduced by $20.00 per week from 25 April 2014 until the Appellant has completed the above work; and 3. Grant liberty to apply in respect of the orders in paragraph (a), (b) and (c). 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: 12 August 2015