Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Segretti v Mens & Boys Fashions Pty Ltd. [2015] NSWCATCD 70 Hearing dates: 4 June 2015 Decision date: 24 June 2015 Jurisdiction: Consumer and Commercial Division Before: L Williams, General Member Decision: The application is dismissed. Catchwords: Compensation, Breach of Quiet Enjoyment, Rent Reduction, Repairs Legislation Cited: Residential Tenancies Act 2010 Strata Schemes Management Act 1996 Cases Cited: Madigan v NSW Land & Housing (2014) NSWCATD 197 Sheath v Whitely (2014) NSWCATCD44 Category: Principal judgment Parties: Ella Segretti (applicant/tenant) Mens and Boys Fashions Pty Ltd (respondent/landlord) Representation: Applicant appeared in person Respondent was represented by its agent, Julia Fanos of First National Real Estate File Number(s): RT 15 /06736 Publication restriction: Unrestricted reasons for decision 1. The tenant commenced proceedings on 9 February 2015 seeking numerous orders against the landlord. 2. When the matter came before the Tribunal for hearing on 4 June 2015, the Tribunal spent some time to ascertain exactly what orders the applicant was seeking, and distilled the claim down to four particular orders being sought against the landlord. The first order sought is compensation for breach of quiet enjoyment. The second order is for rent reduction for withdrawal of facilities. Thirdly, the tenant seeks orders that the landlord carry out repairs and finally, orders that the landlord stop smoke and other gases coming into the premises. 3. Both parties appeared at the hearing. The tenant filed lengthy submissions and gave evidence under affirmation. The landlord's agent appeared and gave evidence under oath. A director of the landlord also appeared but did not give evidence. 4. The landlord also filed evidence in support. The landlord's agent sought to have some material brought before the Tribunal on a "confidential" basis. That is, that the tenant would not be provided with a copy of such material or be allowed to see it. The Tribunal refused to allow this material into evidence, on the grounds that it would be a denial of natural justice to allow such material to be admitted into evidence without affording the tenant an opportunity to reply. Accordingly, the documents produced by the landlord claimed to be confidential do not form part of the consideration of this decision. The parties entered into a residential tenancy agreement ("RTA") on 28 November 2014 in respect of premises at Summer Hill. The term of the RTA is 6 months from 29 November 2014 until 28 May 2015. Rent is currently payable at the rate of $360.00 per week. 1. The premises which are the subject of this application are described as a large one bedroom flat on the top floor. The building is a two storey building divided into 4 one bedroom flats. The landlord is the owner of the entire building. 2. At the end of the hearing, the tenant sought to refer to various cases, and due to time constraints, was given leave to file and serve copies of these cases and submissions in regard to them, by 9 June 2015. The landlord was given the opportunity to reply by 16 June 2015.The tenant has filed additional documents with the Tribunal on 11 June 2015. 3. All documentary evidence has been considered in making this decision and providing these reasons. 4. In regard to all of the orders sought, the applicant has the onus of proving her case in order to succeed. The standard of proof required is the civil standard, being more likely than not to have occurred on the balance of probabilities. 5. Much of the evidence given by the tenant was not relevant to these proceedings. The Residential Tenancies Act 2010 sets out the orders that the Tribunal may make. Any other matters raised should be more properly brought in another forum, and this decision is restricted only to the orders that the Tribunal may make under the Act. Compensation for Breach of Quiet Enjoyment 1. The tenant claims that the landlord has breached the tenant's right to quiet enjoyment. Section 50 of the Act sets out the landlord's obligation in the following terms: "(1) A tenant is entitled to quiet enjoyment of the residential premises without interruption by the landlord or any person claiming by, through or under the landlord or having superior title (such as a head landlord) to that of the landlord. (2) 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. (3) A landlord or landlord's agent must take all reasonable steps to ensure that the landlord's other neighbouring tenants do not interfere with the reasonable peace, comfort or privacy of the tenant in using the residential premises. (4) This section is a term of every residential tenancy agreement. 1. The tenant gave evidence that on 10 January 2015, she received a telephone call from the landlord's agent to advise her that a noise complaint had been received from the tenants below. 2. A further noise complaint was received on 13 January 2015 from the landlord's agent, and a meeting arranged on 16 January 2015, between the tenant, the landlord's agent, and the tenants in the ground floor flat. 3. The tenant gave evidence that, at the meeting on 16 January 2015, the complaint was expressed as being in regard to her wearing heels, "thumping around" and abusing her wife. The tenant believes that the issue was not noise but with the tenant herself. The tenant also states that the landlord's agent "…enabled the tenants to be hostile and aggressive towards the Applicant…" and told the tenants of the ground floor flat to call the police if there were any further issues. 4. The tenant denies that she made any such noise, and believes that the common stairs over the ground floor unit, used by other tenants, were the source of the noise. 5. On 9 February 2015, the police attended the tenant's premises in relation to a noise complaint, and left without taking any action. 6. On 10 February 2015, the police again attended the premises for a noise complaint when a smoke alarm went off but again did not take any action. 7. The tenant states that as a result of these complaints, she and her wife restricted their use of the premises so as to minimise any perceived noise impact. 8. The landlord's agent denies that they have done anything that breaches the tenant's right of quiet enjoyment of the premises. The agent states that she received complaints from the tenants below and acted professionally on those complaints. 9. The agent also submits that they took all possible steps to mitigate any problems including arranging the meeting on 16 January 2015, which they describe as "backfiring". 10. On 22 January 2015, the agent issued a letter which they have described as a "caution". This letter states that complaints have been made against the applicant in regard to noise, and that the landlord may seek to terminate the tenancy on the grounds of the tenant's breach, if further complaints are made. 11. The agent denies that they called the police to the tenant's premises, or even encouraged the other tenants to call the police. 12. The agent gave evidence that she believes that the applicant was in dispute with the tenants below, and as a result, those tenants left the premises in February 2015. 13. The tenant refers to the case of Madigan v NSW Land & Housing (2014) NSWCATD 197 where Member Howe describes quiet enjoyment to incorporate two concepts: tenant's exclusive right to occupy premises and tenant's enjoyment of all the uses of the premises in accordance with the RTA. 14. I agree with Member Howe's description of quiet enjoyment, and accordingly, I cannot see how the landlord has breached this right of the tenant. 15. The tenant has not been denied the right to occupy the premises exclusively, nor has the tenant's use of the premises been disturbed. 16. From the evidence given, I find that the landlord's agent has done no more than relay the complaints made by the other tenants to the applicant, and attempt to deal with them in a professional manner. Had they not done so, they would have not been carrying out their role as the landlord's agent. 17. The landlord also has an obligation to the applicant to take all reasonable steps to ensure that neighbouring tenants do not breach the tenant's right to quiet enjoyment, pursuant to section 50(3). Firstly, there is no evidence that the tenants of the flat below breached the applicant's right to quiet enjoyment by virtue of making noise complaints. Secondly, the obligation in this section is phrased in terms of taking all reasonable steps, and I find that the landlord's agent acted reasonably in dealing with these complaints. 18. The tenant has also raised the issue of the smoke alarm. She has provided an extensive log of times when the smoke alarm activated. 19. The landlord's agent gave evidence that they upgraded the fire safety systems in 2006. 20. As a result of the tenant's complaints the landlord's agent has sent Smoke Alarms Australia to inspect the premises on 11 February 2015 and 17 March 2015. They also arranged for an inspection by NSW Fire Extinguisher Services on 2 April 2015, who determined that the smoke alarms were compliant. 21. The agent stated in evidence that the alarms were interlinked between the units in the building. The tenant believes that the tenants of another unit may be setting the alarm off by smoking, and the agent advised that there is a non-smoking clause in the all of the tenancy agreements and the other tenants have been cautioned about smoking. 22. As a finding of fact, I cannot see that the smoke alarm has been sounding without cause. The agent's evidence as to the smoke alarm's compliance must lead to a finding that the smoke alarm, when it goes off, is carrying out its proper function to alert the tenants as to the presence of smoke somewhere on the property. 23. There is no evidence that the landlord or its agent has done anything in regards to the operation of the smoke alarm, which disturbs the quiet enjoyment of the tenant. 24. Therefore, I cannot find that the tenant's quiet enjoyment of the premises has been breached, and accordingly, I dismiss the claim for compensation. Claim for Rent Reduction due to Withdrawal of Facilities 1. Section 44(1)(b) of the Act provides: "The Tribunal may, on the application of a tenant, make any of the following orders: (a)…, (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." 1. Section 44(3) states that: "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. " 1. The tenant's claim is that, as a result of the noise complaints, her use of the premises was restricted. 2. The landlord's agent disputes that there was any withdrawal of facilities, goods or services, and states that the premises are the same as they were at the commencement of the tenancy. 3. Most claims brought before the Tribunal under this section of the Act relate to situations where whole or parts of the premises have become unusable because the landlord has reduced or withdrawn goods, facilities or services. This is not the case here. There is effectively no change in the premises. The amenities of the property still exist in the same way as they did a t the beginning of the tenancy. 4. The only change has been in the way that the tenant states that she and her wife use the premises, and any such use is not as a result of any withdrawal or reduction of goods, services or facilities. 5. This application is misconceived and accordingly, is dismissed. Repairs 1. The tenant has sought orders that the landlord carry out repairs on the premises. After much discussion, it appeared that the tenant sought repairs in relation to five items, as follows: to install locks on windows, install extraction fans, ensure flooring is properly sealed, install a hot water tap in the kitchen and fix the front door lock. 2. Section 63 of the Act sets out the landlord's general obligation in regard to the premises as follows: "(1) A landlord must provide and maintain the residential premises in a reasonable state of repair, having regard to the age of, rent payable for and prospective life of the premises. (2) A landlord's obligation to provide and maintain the residential premises in a reasonable state of repair applies even though the tenant had notice of the state of disrepair before entering into occupation of the residential premises. (3) A landlord is not in breach of the obligation to provide and maintain the residential premises in a reasonable state of repair if the state of disrepair is caused by the tenant's breach of this Part. (4) This section is a term of every residential tenancy agreement 1. Section 65(1) of the Act gives the Tribunal the power to make orders that the landlord carry out specified repairs. 2. However, the Tribunal can only make such orders if it finds that the landlord has breached its obligation under section 63 to provide and maintain the premises in a reasonable state of repair. This is set out in section 65(2) which states: "The Tribunal may make an order that the landlord carry out specified repairs only if it determines that the landlord has breached the obligation under this Act to maintain the residential premises in a reasonable state of repair, having regard to the age of, rent payable for and prospective life of the premises." 1. Section 65(3) of the Act states: "The Tribunal must not determine that a landlord has breached the obligation unless it is satisfied that: (a) the landlord had notice of the need for the repair or ought reasonably to have known of the need for the repair, and (b) the landlord failed to act with reasonable diligence to have the repair carried out." 1. The tenant provided photographs of the premises, and gave evidence that smoke entered the premises, that the door did not seal properly due to the placement of fire seals, that there was no hot water tap in the kitchen, and that the front security door was often left open. 2. The landlord's agent argued that the tenant had never made a proper request for repairs to be carried out, which the agent could then put to the landlord for instructions. Further, the landlord's agent said that she could not keep up with the various requests for repairs which seemed to be constantly changing. 3. The landlord's agent stated that the floors are sealed and provided photographs of the ceiling of the flat below. I accept that evidence to show that there are no gaps in the flooring of the tenant's flat to allow smoke or fumes to penetrate through the floorboards. 4. The tenant admitted that she had not made a formal request for repairs, and indeed, some of the matters appeared to have been aired for the first time when the matter came to hearing. 5. In these circumstances, I cannot find that the landlord has breached any obligation to carry out repairs. There is no evidence, in terms of section 65(3) that the landlord knew or ought to have known of the need for repair, and subsequently failed to act to carry out that repair with due diligence. 6. The tenant has also raised the issue of water ingress to the premises on two separate occasions. It does not appear to be in dispute that the landlord dealt with this problem promptly on both occasions, and that the second instance occurred when there was a major storm event. 7. The tenant's argument in regard to water penetration appears to be that the roofing has been done poorly and that there is a possibility that there may be further leaks. However, there is no evidence to support this statement, and again, the tenant does not discharge her onus of proof to show that the landlord has breached its obligation under section 65(3). 8. The tenant seeks orders that the premises be sound proofed and odour proofed. These orders can only be made if it is shown that the landlord did not provide the premises in a reasonable state of repair. 9. The tenant has not discharged her onus of proof to show that sound and odour proofing the premises is part of the landlord's obligation to provide the premises in a reasonable state of repair. There is no evidence at all that the premises are not in a reasonable state of repair as a consequence of this work not being carried out. 10. The tenant also claims that the locks on the premises are not secure and that the front door to the building is often left ajar. In regard to the subject premises, the tenant submits that the timber frame around the door is weak. The tenant refers to the case of Madigan v NSW Land & Housing (2014) NSWCATD 197 where Member Howe referred to the phrase "reasonably secure" as set out in section 70 of the Act. This section refers to the landlord's obligation to provide locks and other security devices to ensure that the premises are reasonably secure. 11. The landlord's agent denies that the front door is left ajar, and in any event, that may be as a result of other tenants in the building. The doors have all been fitted with fire seals. The landlord's agent says, and I accept, that the doors have been fitted with functional locks. 12. Again there is no evidence that the landlords have not provided the premises in a manner that is reasonably secure, and I cannot find that the landlords have breached their obligations under section 70. 13. Accordingly, the Tribunal dismisses the tenant's application that the landlord be ordered to carry out repairs. Landlord to stop smoke and other gases entering premises 1. From the tenants' evidence given at the hearing, it was not apparent under which part of the Act that the tenant proposed such orders be made. When the further submissions were filed, the tenant referred to the case of Sheath v Whitely (2014) NSWCATCD44 which was determined pursuant to the Strata Schemes Management Act 1996 ("SSMA"). 2. It is not the function of this Tribunal as constituted, to determine a claim under the SSMA. If the tenant wishes to make such an application, then separate proceedings would need to be commenced, subject to the tenant's eligibility to bring such proceedings under that Act. 3. In any event, a claim under this Act was not brought to the attention of the landlord at the hearing, and it would be unfair to deal with such matter without allowing them to have the opportunity to meet such a claim. L Williams General Member Civil and Administrative Tribunal of New South Wales 24 June 2015 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: 28 August 2015