Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Richards v Omega House Pty Ltd [2016] NSWCATAP 17 Hearing dates: 31 August 2015 Date of orders: 21 January 2016 Decision date: 21 January 2016 Jurisdiction: Appeal Panel Before: Dr J Renwick SC, Senior Member T Simon, Senior Member Decision: Leave to appeal is refused and the appeal is otherwise dismissed Catchwords: CIVIL AND ADMINISTRATIVE TRIBUNAL – Appeal Panel – questions of law – leave – residential tenancy claim brought out of time – no question of law – leave not granted – appeal dismissed Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Residential Tenancies Act 2010 (NSW) Cases Cited: Collins v Urban [2014] NSWCATAP 17 Worrall v Commissioner for Housing for the Australian Capital Territory [2002] FCAFC 127 Texts Cited: None Category: Principal judgment Parties: Rebbekah Richards (Appellant/Applicant) Omega House Pty Ltd (Respondent) Representation: Appellant/Applicant appeared in person Respondent appeared by its Director, Ms Robyn Metledge File Number(s): AP 15/33098 Publication restriction: None Decision under appeal Court or tribunal: Civil and Administrative Tribunal of New South Wales Jurisdiction: Consumer and Commercial Division Citation: [2015] NSWCATAD Date of Decision: 30 April 2015 Before: L Williams, Member File Number(s): RT 15/11552 REASONS FOR Decision Introduction 1. Rebbekah Richards (the tenant) rented premises at Five Dock from Omega House Pty Ltd (the landlord) in August 2014. The tenant brought proceedings in March 2015, shortly before she vacated the premises in April 2015 seeking various orders including compensation in the sum of $15,000 and an order reducing the rent payable where the premises were said to be unusable or uninhabitable. The Tribunal below found those proceedings were brought out of time and declined to extend time. For the reasons set out below, we do not find there was any error of law as to which there is an appeal as of right: see s 80 of the Civil and Administrative Tribunal Act 2013 (the Act). Rather, leave is sought, and for the reasons set out below, we would decline to grant leave. The facts 1. The tenant entered into a residential tenancy agreement in respect of the premises at Five Dock, on 25 August 2014, for a term of 12 months. The tenancy was, in fact, terminated by order of the Tribunal on 7 April 2015, the tenants having vacated the premises shortly before that date. The claim by the tenant was for compensation for certain breaches of the agreement, the claim being made under s 190 of the Residential Tenancies Act 2010 (the RTA Act) for breach of s 52 and s 63 of the same Act. Those provisions provide as follows: 190 Applications relating to breaches of residential tenancy agreements (1) A landlord or a tenant may apply to the Tribunal for an order in relation to a breach of a residential tenancy agreement 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. (2) An application may be made: (a) during or after the end of a residential tenancy agreement, and (b) whether or not a termination notice has been given or a termination order made. (3) A landlord's agent may make an application on behalf of a landlord. 52 Landlord's general obligations for residential premises (1) A landlord must provide the residential premises in a reasonable state of cleanliness and fit for habitation by the tenant. (2) A landlord must not interfere with the supply of gas, electricity, water, telecommunications services or other services to the residential premises unless the interference is necessary to avoid danger to any person or to enable maintenance or repairs to be carried out. (3) A landlord must comply with the landlord's statutory obligations relating to the health or safety of the residential premises. Note: Such obligations include obligations relating to swimming pools under the Swimming Pools Act 1992 . (4) This section is a term of every residential tenancy agreement. 63 Landlord's general obligation (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. Regulation 22(9) of the Residential Tenancies Regulation provides: For the purposes of section 190 (1) of the Act, 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 3 months after the applicant becomes aware of the breach. 1. In the decision below, the Tribunal found that concerns were raised by the tenant with the landlord in relation to her 'Foxtel, telephone, internet service, etc', which we understand to include complaints about being provided with security keys to her balcony window, together with the gas connection. The findings of the Tribunal in this regard were that claims needed to be made within three months of becoming aware of the breach of the lease. The Tribunal found that although, as the tenant herself said, she was aware of a breach in relation to these matters from about 2 September 2014, her claim was not made until March 2015, six months later. The Tribunal found those claims were brought out of time, and given that the tenant's only reason for delaying the claim were that the issues were 'ongoing', resulted in the Tribunal concluding that no reasonable explanation had been given for the delay. In our opinion, there is no error of law in that finding. The tenant therefore requires leave to appeal. In relation to these matters the tenant faces the formidable task of showing that a discretionary decision to refuse to extend time is a matter where we should also exercise our discretion to grant leave. As we later explain, we are not prepared to do so. 2. Secondly, claims were made that the landlord breached its obligation under s 63, however s 65(3) also 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. In other words, it was necessary, in order for the tenant to succeed, to satisfy the Tribunal that the landlord both had notice of the repair or need for repair, and failed to act with reasonable diligence. The Tribunal did find that there were problems with the air conditioning system, and with water leakage. In relation to the problem with the air conditioning, the evidence was that although tradesmen were provided by the landlord to attend the premises as soon as the landlord became aware of the issue, it took several visits to determine the true fault and carry out repairs. In relation to the water leakage, the finding by the Tribunal is that although the landlord's agent took action to have the leak investigated and repaired when advised, by then, the tenant did not want to have further tradespeople in her premises. Accordingly, the Tribunal found there had been no failure by the landlord or their agent to act with reasonable diligence. There might have been annoyance or inconvenience, but that is not a breach of the relevant provisions. 2. Nevertheless, a large number of visits by tradespeople were necessitated because of the problems the tenant had with a variety of matters including the air conditioning and the water leakage, as well as the other matters complained of. In that regard, given the strict liability nature of a breach of the right to peace and quiet enjoyment contained in s 50(2) of the RTA Act, see e.g. Worrall v Commissioner for Housing for the Australian Capital Territory [2002] FCAFC 127, that there had been a breach and the Tribunal assessed the damages being $50 for each week for 29 weeks, namely for the entirety of the lease, thus reducing the rent from $535 to $485 a week. We were informed that this amount has been paid. 3. In relation to these findings in relation to s 63, there is no error of law. In relation to the findings under s 50(2), the tenant was, of course, successful, and there was no notice of cross-appeal by the landlord. The complaint in relation to the assessment of the tenant's damages, in our opinion, does not amount to a question of law. 4. We turn then to the grounds of appeal: 11A Orders challenged on appeal 1. That the claims for breaches by the Landlord/Agent of s 52 of the Residential Tenancy Act (RTA) are brought out of time and no reasonable explanation has been given for the delay. 2. That the landlord has not breached their obligation under s 63 of the RTA by virtue of the determination that the Landlord/Agent has not failed to act with reasonable diligence in responding to requests for repairs. 3. That there appeared to be no consideration of orders being made in respect of the tenant's additional claims regarding breaches of the following: a. Clause 29.1 and 29.2 of the Residential Tenancy agreement for the relevant property – the requirement to provide a tenant with keys and the security of the apartment and building throughout the tenancy. b. The Property, Stock and Business Agents Act 2002, in relation to false advertising as it relates to the apartment/building being 'Foxtel/Telephone/Internet ready, air-conditioned ready' and a 'premium property that exceeds expectations'. 11B Grounds of appeal 1. The claims for breach of s 52 of the RTA were not just limited to the issues with the Foxtel, Telephone and Internet service infrastructure not being available to facilitate a connection which appears to be the basis for the order advising that any claims in that regard are out of time. The claims for breach of s 52 extent to the following multiple issues outlined in the Tenant's claim; a. The air conditioner not being functional – this was repeatedly identified by the tenant over the period of the tenancy starting 2 September 2014; and b. The impact of the water leaks rendering the bedroom of the apartment uninhabitable from 9 February for the remainder of the tenancy; c. The necessary infrastructure that enables the tenant to commence using Foxtel, Telephone & Internet services were not in place as advertised; and d. The failure to secure the property sufficiently throughout the tenancy. These claims should not be considered as having been made out of time as: i. The air conditioner not being functional and the lack of working building security doors were issues that were continually identified on many occasions by the Tenant during the period of the Tenancy. These were identified post unsuccessful attempts by the Landlord/Agent to fix the issues (in the case of the air conditioner) and/or inaction post commitments to address (in the case of the doors for the building) and inaction post commitments to address (in the case of the doors for the building) and the time period for a claim should run from the latest dates of identification. ii. The identification of the water leak issues was made on 9 February and the claims in relation to that are within the time allowed. 2. The finding that the Landlord/Agents had not failed to act with reasonable diligence in responding to requests for repairs and so is not in breach of the requirement under s 63 of the RTA to provide and maintain the premises in a reasonable state of repair is considered wrong given that: a. The Landlord installed faulty air conditioning units initially and after 13+ visits to the premises over a period of 5.5 months this was still not working; b. The repairs for the water leak included steam cleaning and this did not successfully remove the impact of the leak (including the resultant mould infestation in the bedroom) with 2nd leak occurring later in the same month. For an approximate 8 week period (approx 54 nights) the bedroom impacted was uninhabitable and the tenant had to resort to sleeping on the lounge. 3. The Tribunal has not made any findings in respect of the failure by the Landlord/Agents to provide keys to the tenant which meant the tenant was not able to maintain Home & Contents insurance at the relevant time nor ensure security for the building was effective. The tenant has initially taken out such insurance but was advised, due to these issues, that it could not be maintained. The water damage to the tenant's bed and mattress could not then be claimed through such insurance and necessarily form part of this claim which has been overlooked in the original determination by the Tribunal. 12B Application for leave to appeal from a decision of the Consumer and Commercial Division i. Decision not fair or equitable 1. To dismiss the claim for breach of s 52 based on the premise that it was out of time. The decision failed to recognise that this relates to more than just Foxtel, Telephone & Internet service but extends to water damage issues and also non-functioning air conditioning. The water damage was identified initially within the required timeframe to make a claim. The technology infrastructure and air conditioning issues were re-identified at various times throughout the tenancy post repeated unsuccessful attempts by the Landlord to address them. To say the claim is out of time is not fair and equitable as the Tenant repeatedly advised the Agent/Landlord of the issues continuing despite multiple attempts by the Landlord to address the issues or unfounded commitments to do so. The tenant tried to be amendable [sic] and work with the Agents/Landlord on the rectification plans for almost 6 months before the decision was made to make a claim (over 70 tradesmen and agent visits from 2 September 2014 to 28 February 2015). 2. These issues individually and collectively show a breach of the need for the premises to be fit for habitation (that is the temperature within the unit was unbearable and the water damage from the water leak in Unit 10's kitchen made the bedroom of the premises uninhabitable from 9 February 2015) and or unsafe and unhealthy (that is for those reasons already stated as well as the lack of reasonable security for the building itself given both front doors never locked). Further details are provided in the attached initial claim to NCAT. 3. The failure by the Landlord/Agent to provide keys to the Tenant or secure the building sufficiently prior to the water damage occurring rendered the tenant's ability to secure home and contents insurance unsuccessful. For this to preclude the tenant from compensation for water damage to the impacted bed and mattress is not fair and equitable and the claims for this should be allowed under this Appeal. 1. It can be seen that the tenant wishes to re-agitate the fine detail of factual matters decided below. To that end the tenant sought to tender a large quantity of material. Most of the material was statutory declarations and references, and emails to agents, all which were available at the hearing, or could have been obtained by reasonable diligence on the part of the tenant. For example, the emails to the agents could have been obtained by an order from the Tribunal requiring their production. A small amount of the material was emails in relation to which the tenant said she had had difficulties accessing her computer at the time of the hearing. We are not satisfied that such difficulties could not have been overcome by having the computer examined by a repairer, which it was not. We therefore decline to receive the tendered material as it is not, in fact 'new' evidence within the meaning of clause 12 of Schedule 2 to the Regulations to the Civil and Administrative Tribunal Act. Without such evidence the assertions in the grounds of appeal lack factual support. 2. We approach the grant of leave following the test enunciated in Collins v Urban [2014] NSWCATAP 17. We decline to grant leave: 1. In relation to the challenge to the decision by the Tribunal below to decline to extend time for the claim under s 52 the tenant faces the formidable hurdle of showing that the discretion miscarried in such a way as to justify the granting of leave where there is no issue of principle nor matter of general importance, nor any new evidence. The tenant simply wishes to re-agitate the arguments below. The tenant has not established that the discretion was wrongly exercised 2. In relation to the claims under s 63, again the challenges are factual, without wider significance and there is no demonstrated error. 1. Accordingly, we decline to grant leave to appeal. We have already found that there were no errors of law. 2. We therefore refuse leave to appeal and otherwise dismiss the appeal. ****** 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: 21 January 2016