Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Schrell v NSW Land and Housing Corporation [2019] NSWCATAP 256 Hearing dates: 23 September 2019 Date of orders: 14 October 2019 Decision date: 14 October 2019 Jurisdiction: Appeal Panel Before: M Harrowell, Deputy President A Boxall, Senior Member Decision: Leave to appeal is refused and the appeal is dismissed. Catchwords: LANDLORD AND TENANT – claim for compensation and rent reduction – no error is shown in award. Legislation Cited: Civil and Administrative Tribunal Act, 2013 (NSW) Residential Tenancies Act, 2010 (NSW) Cases Cited: Coulton v Holcombe (1986) 162 CLR 1 at [9]; [1986] HCA 33 Hadley v Baxendale (1854) 9 Ex 341, 156 ER 145 Category: Principal judgment Parties: Appellant: Antje Schrell Respondent: NSW Land and Housing Corporation Representation: Counsel N Simpson (Respondent) Solicitors: Appellant (Self-represented) File Number(s): AP 19/29625 Decision under appeal Court or tribunal: Civil and Administrative Tribunal of New South Wales Jurisdiction: Consumer and Commercial Division Citation: Not applicable Date of Decision: 6 June 2019 Before: S Corley, General Member File Number(s): SH 19/15643 reasons for decision Introduction 1. The appellant (tenant) is a tenant in a property at Forestville (premises) under a residential tenancy agreement with the respondent (landlord). 2. There have been various disputes between the parties concerning the need to carry out repairs and other work to the premises. Work orders have been made, the tenant has been required to relocate into temporary accommodation and various claims for compensation have been made. 3. The present appeal relates to application SH 19/15643. That application was determined by the Tribunal on 6 June 2019. 4. The decision of the Tribunal was to award the tenant a total of $4606.92. This amount consisted of $4206.92 for accommodation costs up till 10 June 2019 and "compensation loss of amenity" of $400.00. The Tribunal also made a work order, a matter not presently relevant to this dispute. The Tribunal also made an order that the rent for the residential premises not exceed $74.20 per week from 29 March 2019 until 20 June 2019 or such date when the work required by the work order was completed. 5. Lastly, the Tribunal made an order that the landlord pay the tenant's ongoing temporary accommodation at a rate of $148.00 per day from 10 June 2019. 6. The Tribunal provided written reasons for its decision (Reasons). 7. The Tribunal found that the initial alternative accommodation provided by the landlord for the tenant, during a period when earlier works were carried out, was unsatisfactory. In this regard the alternative accommodation did not provide facilities to enable the preparation of food, washing of clothes and linen or the "normal amenity of living in a reasonable situation": Reasons at [55]. Consequently, the Tribunal determined that a rent reduction order should be made. 8. It was because of the failure of the landlord to provide suitable alternative accommodation while repairs were carried out that the Tribunal ordered the landlord to pay the tenant the sum of $148 per night for accommodation which she had found which provided to her the necessary amenities to prepare food, wash clothes and the like: Reasons at [57]. 9. The Tribunal dealt with claims for compensation which the tenant made. These claims included the cost of "buying warmer clothing as her clothes are packed away in storage" and other claims to which we will refer to below. Here the Tribunal awarded a total of $400.00: Reasons at [58]-[59]. 10. Finally, the Tribunal dismissed the tenant's claim for costs in respect of the proceedings at first instance: Reasons at [60]. Notice of Appeal and history of appeal proceedings 1. The tenant filed a Notice of Appeal dated 21 June 2019 on 25 June 2019. At the call over on 30 July 2019, by consent time to file the appeal was extended until 25 June 2019. 2. In the Notice of Appeal, the appellant challenged the award for compensation of $400 and also order number 2, the work order to which we have referred above. However, the orders sought on appeal only related to compensation. Consequently, it is unnecessary to consider whether the work order was properly made. 3. The Notice of Appeal had attached to it a schedule which included grounds of appeal. The tenant listed 10 items for which she was seeking compensation. 4. At the hearing of this appeal on 23 September 2019, the Appeal Panel was advised by the tenant that she sought the following compensation: 1. Electricity charges – $321.85 2. Loss of discount for purchase of IKEA wardrobe – $476.00 3. Purchase of winter clothing – $805.14 4. Cleaning costs – $250.00 5. Parking fine $512.00. 6. New blouse – $80.00 7. Loss of basic living – 180 days at $25 per day, total $4500 or alternatively 92 days at $25 per day, total $2300 8. Spoiled food – $80.00 9. Fuel / transport $378.47 10. Costs incurred in proceedings at first instance – $631.83. 1. The tenant's Notice of Appeal had two other items. One was a claim for credit card interest, fees and charges. The other was "a timeframe for when the temporary accommodation sent 10 June 2019 has to be reimbursed by". The first of these items was not pressed. The second item related to payment of the accommodation charges totalling $4206.92 which have been paid. Accordingly this claim was not pressed either. 2. The tenant also sought to raise at the hearing two new claims. One was for water charges of $73.20. The other was for health supplements which she had purchased for "stress relief" totalling $85.43. These claims were not raised in the original proceedings and should not be permitted in the appeal: Coulton v Holcombe (1986) 162 CLR 1 at [9]; [1986] HCA 33 3. It is convenient to deal with each of the items claimed separately. In doing so, we will refer to the written and oral submissions as necessary. Consideration 1. The central issue raised in this appeal is whether the Tribunal was correct in awarding $400 only. In considering this matter, it is necessary to have regard to the other orders the Tribunal made concerning compensation for alternative accommodation and rent reduction. 2. Essentially, the finding in relation to what loss has been suffered is a question of fact. Leave to appeal is required to challenge factual findings. However, having regard to the provisions of the Residential Tenancies Act, 2010 (NSW) (RT Act) it is also necessary to consider the interrelationship of various remedies available to the Tribunal in addressing any breach of a residential tenancy agreement. This includes the power to make an order reducing rent under s 44 of the RT Act. In cases such as the present, it is necessary to ensure that double compensation is not awarded. Electricity charges – $321.85 1. In relation to this item, the tenant said the electricity charges related to the premises at Forestville, not her alternative accommodation. In relation to her alternative accommodation, the allowance of $148 per week included all water and electricity charges. 2. The issue is whether the tenant is entitled to recover electricity charges she is still paying on the premises in circumstances where the landlord is paying the electricity charges for the alternative accommodation. 3. There was no dispute that the tenant is obliged to pay for electricity at the premises. 4. Consequently, if she was unable to live in the premises, the electricity could have been turned off but she would have been obliged to pay the electricity or the alternative accommodation. However, this did not occur. As best as we can ascertain, the power remained on at the premises, to be used by tradespeople and others carry out repairs, and the landlord paid the sum of $148 per week to cover all costs, including electricity, at the alternative accommodation. 5. In order to recover any amount under this item, the tenant would need to show that the electricity charges of the premises increased during the period in which she did not live there due to the actions of those carrying out work on behalf of the landlord. 6. The tenant's bundle (AB) includes an electricity account (page 86) totalling $134.44 for the quarter. The tenant said in submissions that the quarterly electricity charges when she was living in the premises average $70 per quarter, a difference of approximately $64 per quarter. 7. It seems to us that the amount of $64 per quarter represents the increased electricity use for which there is an entitlement to compensation, it being reasonable to assume that the tenant uses approximately the same amount of electricity in the alternative accommodation. 8. It was agreed in the appeal that works were completed on 27 June 2019 after which time the tenant could have returned to the premises. While the tenant said an inspection was carried out to confirm compliance on 19 July 2019, it seems to us that the earlier date is the date to which electricity charges should be allowed. 9. On the material before us we are satisfied that the Tribunal should have allowed an amount of $64 for the increased electricity charges under this item. 10. It is clear the Tribunal rejected this item because electricity was being paid for by the landlord for the alternative accommodation. Accordingly no adjustment was allowed: Reasons at [59]. 11. Nonetheless, the respondent submitted that the award of $400 was, in any event, sufficient to include any relevant compensation. Accordingly, the respondent says this claim should be rejected. 12. For the reasons appearing below, we accept the amount of compensation of $400.00 is sufficient to include the amount of this claim. Loss of discount for purchase of IKEA wardrobe – $476.00 1. The tenant submitted she wanted to purchase a new wardrobe when she moved in. Consequently, she lost the benefit of a sale which would have enabled her to purchase the desired wardrobe for a 20% discount. She claims the amount of this discount. 2. In our opinion the loss is not reasonably foreseeable and would not fit within the second limb of Hadley v Baxendale (1854) 9 Ex 341, 156 ER 145 as constituting special circumstances for a claim arising from beach of the residential tenancy agreement. The loss is otherwise too remote. 3. Accordingly, this ground is dismissed. Purchase of winter clothing – $805.14 1. This claim relates to the purchase of winter clothing. 2. The tenant's winter clothes were in storage while work was carried out. She did not assert they were inaccessible. Rather, the appellant said they were difficult to access due to other goods being in the way which would be heavy to move to access clothing. 3. The Tribunal rejected this claim. In doing so, the Tribunal found the tenant had the ongoing benefit of goods purchased. 4. Despite the tenant asserting she would not have bought new winter clothing, we see no error in the Tribunal's decision and this ground is rejected. Cleaning costs – $250.00 1. The tenant said the unit needed to be cleaned to remove concrete dust following various work which had been carried out. However, she did not submit that the landlord had failed to carry out this cleaning. Further, we were advised that no expense had in fact been incurred by her. 2. There is no evidence to support this claim either as to the need for cleaning or the cost of doing so. Accordingly, this ground of appeal is rejected. Parking fine – $512.00. 1. The tenant submitted that she parked close to her alternative accommodation in a two-hour parking zone. The fine was incurred because she slept in and did not move her car on time. 2. The tenant says that her alternative accommodation does not have suitable parking and that she had to park some distance away from the alternative accommodation. 3. It is clear the parking fine was incurred solely as a result of the actions of the tenant. This ground of appeal is rejected. New blouse – $80.00 1. The claim made here is in respect of a blouse which the appellant says was damaged when she re-entered the premises, following completion of the works. She was not told that the walls had wet paint. The tenant was unable to clean the paint from her blouse and claimed part of the cost of a new blouse. 2. The landlord said that the loss claimed was not foreseeable. No submissions were made by the landlord about the amount claimed, being part of the cost necessary to purchase a new blouse. Otherwise, no suggestion was made by the landlord that any warning was given to the tenant about the wet paint. 3. No suggestion was made that the tenant was not entitled to be on the premises at the time her blouse was damaged. 4. In these circumstances, the only conclusion available is that work was being done by the landlord and the tenant had not been advised of the wet paint. Consequently, this amount should be allowed. 5. As with the claim for electricity, for the reasons below we are satisfied that the compensation of $400.00 is sufficient to compensate the tenant for this item. Loss of basic living – 180 days at $25 per day, total $4500 or alternatively 92 days at $25 per day, total $2300 1. The compensation sought by the tenant under this heading was for the additional costs of doing laundry, purchasing takeaway food and expenses incurred while the landlord carried out repair work. 2. The tenant claimed, in the alternative amount of $4500 for a period of 180 days at a rate of $25 per day or, alternatively, the total of $2300 for a period of 92 days calculated at $25 per day. In making this submission the tenant explained the amount she spent on laundry each week and on takeaway food as justifying this sum. 3. Initially, the landlord submitted compensation under this heading was included in the award of $400. However, having regard to the Reasons, this submission was plainly wrong and withdrawn. 4. The respondent then submitted that the order for rent reduction dealt with this item. 5. We accept this submission. 6. The manner in which the Tribunal compensated the tenant was to require the landlord to pay all of her alternative accommodation costs, the tenant being required to continue to pay rent. For the period where she did not have any facilities such as refrigerator and stove, compensation was in the form of the rent reduction order. 7. A rent reduction order can be made where there has been a withdrawal of services as occurred here. Tribunal assessed the overall reduction at approximately 30% (see order for made 6 June 2019 and Reasons at [54]). 8. The RT Act provides several remedies which, as will be apparent from the above, overlap with each other. However, this does not permit the Tribunal to compensate a party twice. To accede to the orders sought by the tenant would be to allow double compensation. 9. Otherwise, we are not satisfied any additional costs in respect of food should be allowed. 10. Accordingly, this ground of appeal is rejected. Spoiled food – $80.00 1. The food was spoiled because it was placed in the refrigerator which was in the initial alternative accommodation provided by the landlord to which we have referred above. The refrigerator was faulty. 2. There is no dispute as to the amount of goods lost. However, the respondent submitted the claim was too remote. 3. While the initial alternative accommodation was provided by a third party, that accommodation was selected and paid for by the landlord in consequence of it assuming the obligation to provide alternative accommodation during the period in which works were carried out to the premises. 4. The alternative accommodation was, in respect of the refrigerator, insufficient. In our view an amount of $80 should be allowed for the food. 5. As with the claim for electricity and the blouse, for the reasons below we are satisfied that the compensation of $400.00 is sufficient to compensate the tenant for this item. Fuel / transport $378.47 1. The tenant refers to various receipts in her bundle of documents found at AB 107 – 109 relating to fuel and transport costs. She says the Tribunal should have allowed these amounts being extra costs she incurred because of the need to relocate to alternative premises. She says that she had to travel further, including in her motor vehicle, tend to shopping and other matters. 2. The landlord said the receipts constitute new evidence. It also submitted that the amount claimed was either included in the $400 compensation or taken account of in the rent reduction order. In this regard the respondent referred to the Tribunal's order for compensation for "loss of amenity" referred to in the Reasons at [58]. 3. The tenant did not refer us to any evidence from the proceedings at first instance concerning the purposes of the travel arrangements in respect of the public transport costs or petrol costs. Consequently, there is no, or insufficient, evidence to prove that the amount claimed represented additional costs arising from a breach by the landlord of the residential tenancy agreement and her consequential relocation to alternative accommodation. Further, we accept the submission that the rent reduction order and the order for compensation collectively should be seen as providing for any loss of amenity arising from the need for her to vacate the premises during the carrying out of repair work. 4. This ground of appeal is rejected. Costs incurred in proceedings at first instance – $631.83. 1. Section 60 of the Civil and Administrative Tribunal Act, 2013 (NSW) operates in respect of the proceedings at first instance. That is, each party is to pay their own costs: s 60(1). However, the Tribunal may make an order for costs if special circumstances exist: s 60(2). 2. While these proceedings were renewal proceedings, the tenant also sought additional relief by way of further amounts for compensation and/or rent reduction. 3. At [60] of the Reasons, the Tribunal rejected the tenant's claim for costs incurred in the proceedings. The Tribunal said: The circumstances in this case are not such as to cause me to deviate from the normal position regarding costs. 1. Clearly the Tribunal formed a view that this case was not out of the ordinary and that there were no special circumstances warranting an award for costs. Therefore, the usual position applied, that is each party is to pay their own costs. 2. No error is shown in respect of this finding or in the exercise of the Tribunal's discretion and this ground of appeal is rejected. Orders 1. As stated above, the tenant was entitled to recover an amount of $64 for electricity, $80 for her blouse and $80 for spoiled food, a total of $224. 2. The total award for compensation for "loss of amenity" by the Tribunal was $400: Reasons at [58]. Having regard to our analysis above, no error has been established by the tenant that would entitle her to an amount in excess of $400. The landlord did not challenge this award. 3. It follows that the appeal should be dismissed. Accordingly, we will make the following orders: 1. Leave to appeal is refused and the appeal is 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: 14 October 2019