Hamilton v NSW Land and Housing Corporation [2015] NSWCATCD 135

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Hamilton v NSW Land and Housing Corporation [2015] NSWCATCD 135 Hearing dates: 24 September 2015 Decision date: 27 October 2015 Jurisdiction: Consumer and Commercial Division Before: G Meadows, Senior Member Decision: The application is dismissed. Legislation Cited: Civil and Administrative Tribunal Act 2013 Residential Tenancies Act 2010 Category: Principal judgment Parties: Anna Hamilton (applicant); NSW Land & Housing Corporation (respondent) File Number(s): SH 14/43380 Publication restriction: Nil

reasons for decision

Application

Background

The Original Application 1. The applicant, Ms Anna Hamilton, leases premises from the respondent landlord at " " Avenue Ultimo. On 27 May 2014, Ms Hamilton filed an application ("original application") seeking orders pursuant to ss 187(1)(b) and 187(1)(h) of the Residential Tenancies Act 2010 ("RT Act"), alleging the landlord breached Clause 12(3) of the lease, in that the landlord failed to 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. That application was matter number SH 14/27597. 2. The original application alleged that the landlord's tenant ("5E") in premises immediately above those occupied by the applicant disturbed the applicant's right to quiet enjoyment by extremely disruptive behaviour on numerous occasions and that the landlord had failed to respond adequately to the applicant's requests for action by the landlord. 3. The original application was listed for a conciliated hearing on 11 June 2014. It is not clear from the Tribunal file what occurred on that occasion, although there is a note to the effect that the representative of the respondent landlord was not aware of the matter but happened to be present in relation to another matter. In any event, the original application was adjourned to a later date. 4. On 26 June 2014 the original application was listed for a further conciliated hearing. On that date the parties signed an agreement in the following terms: Landlord agrees to take an action before the Tribunal to make the tenant orders to comply with their tenancy agreement. As the applicant's quiet enjoyment is adversely affected by the tenant in Unit "E". T. will seek advice from T.A.A.S. 1. That agreement is not clearly worded, and the notation and order made by the presiding Member on that occasion are also somewhat unclear: It is noted that the Respondent will commence action against the tenant causing a breach of the quiet enjoyment of the Applicant. 1. By consent, the Applicant may seek to [sic] leave to renew these proceedings in the event these undertakings by the Respondent are not compiled [sic] with by the other party. There is no dispute by the parties in the present proceedings that it was intended by that agreement that the landlord undertook to take action against 5E by bringing an application against 5E in the Tribunal. I note that neither the agreement nor the Member's notation specified the nature of that application. In the regard, I infer the phrase "the other party" in the order extracted above is a reference to the landlord.