Antonaras v NSW Land and Housing Corporation

[2022] NSWCATCD 54

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Antonaras v NSW Land and Housing Corporation [2022] NSWCATCD 54

Hearing dates:

15 March 2022

Date of orders:

29 April 2022

Decision date:

29 April 2022

Jurisdiction:

Consumer and Commercial Division

Before:

J Alder, General Member

Decision:

1. The Tribunal declines to make further orders.

Catchwords:

LEASES AND TENANCIES - Finality of consent orders – Estoppel – Rent reduction-compensation - Non-economic loss - Right to quiet enjoyment

Legislation Cited:

Residential Tenancies Act 2010 (NSW)

Residential Tenancies Regulation 2019 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Civil Liability Act 2002 (NSW)

Cases Cited:

Roberts v NSW Aboriginal Housing Office [2017] NSWCATAP 9

Makowska v St George Community Housing Ltd [2020] NSWCATAP 159

Makowska v St George Community Housing Ltd [2021] NSWSC 287

Makowska v St George Community Housing Ltd [2021] NSWCA 249

Baltic Shipping Co v Dillon [1993] HCA 4

Moore v Scenic Tours Pty Ltd [2002] HCA 17

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Toula Antonaras (applicant)

Representation:

Applicant (Self-represented)

Solicitor:
Legal Services Branch, NSW Land and Housing Corporation (Respondent)

File Number(s):

SH 21/41005

Publication restriction:

Nil

REASONS FOR DECISION

Summary

1. On 15 March 2022, the matter was listed for hearing to determine whether the applicant, Ms Antonaras (tenant) was prevented from pursuing claims brought for economic and non-economic loss (Compensation Claims) on the basis such claims were resolved by consent orders made by the Tribunal on 30 November 2021 (Consent Orders).

2. For the reasons that follow, I have determined that the Consent Orders were final and included all claims in the tenant’s original application (as amended) and the tenant is consequently estopped from re-agitating the Compensation Claims. Notwithstanding, I have also considered the merits of the Compensation Claims and have determined that the tenant has not discharged her onus of proof that the respondent (landlord) is liable for the loss the tenant says she has suffered flowing from the Compensation Claims.

Background and orders sought

3. The tenant has been the sole occupant of social housing premises at Daceyville (Premises) for 12 years pursuant to a tenancy agreement with the landlord dated 25 November 2010 (RTA).

4. She pays a subsidised weekly rent of $110.

5. The tenant’s underlying complaint is that from April 2019 she made numerous requests of the landlord to repair the gutters at the Premises and the landlord initially failed to act and then failed to complete the gutter repairs. As a result of the landlord’s neglect, constant water seepage and water pooling from the drains is alleged to have caused structural damage to the Premises, which the tenant submits is evidenced by siding on the concrete and cracks on the internal walls. In the last year the tenant has also experienced excessive dampness, moisture and mould on the internal walls of the Premises and her furniture.

Original application

6. On 29 September 2021, the tenant filed an application (Application) seeking an order pursuant to s65(1)(a) of the Residential Tenancies Act NSW 2010 (Act) that the repairs to the gutters be completed (Gutter Repair Order). The Reasons for Orders in the Application stated the tenant also sought compensation for mould damage to her furniture and clothes, but no amount nor order was specified in relation to the Compensation Claims.

Application to amend

7. On 19 October 2021, the tenant filed supporting documents including a request to amend the Application to include additional orders. I have marked these documents Exhibit T1.

8. The tenant firstly sought a rent reduction of $55.00 per week under s 44(1)(b) of the Act. The reduction was for an unspecified period, although s 44(6) specifies that any reduction in rent is limited to 12 months, which meant that the rent reduction sought by the tenant was necessarily limited to $2,860. The rent reduction was sought on the basis that the tenant submitted she:

1. Was unable to use and enjoy the full use of her home due to mould and dampness.

2. Was unable to have full enjoyment of the backyard due to pooling around gutters.

3. Suffered the inconvenience of having to have windows fully open to get rid of the smell and dampness.

9. Secondly, the tenant’s amended claim set out the basis for the Compensation Claims which were now specified to be brought under s 187(1)(d) of the Act for a total sum of $14,000. The Compensation Claims comprised a claim for non-economic loss of $3,000 for “unprecedented distress, emotional and mental[ly] unwellness, fatigue [and] stress [and] inconvenience over a three year period of having to wait for contractors to show up and not completing the job” and “being disappointed” with the inadequacy and incompetency of the Department of Housing. It also comprised a claim for economic loss of $11,000 for destruction of personal items and out of pocket expenses.

10. On 22 October 2021 at the first Conciliation Hearing, the Tribunal:

1. Granted the landlord’s authorised contractor access to the premises on 1 November 2021 for the purpose of inspecting for repairs.

2. Noted the amendment to the claim;

3. Made directions for the filing and service of additional documents by the tenant (due 5 November 2021) and documents by the landlord (due 19 November 2021). The tenant was directed (order 4) to provide as part of her additional documents:

1. an itemised list of all compensation that is being claimed;

2. an itemised list of repairs;

3. a chronology of events; and

4. a short statement in relation to her claim.

4. Set the matter down for a final hearing.

11. The Tribunal recorded in its directions that the tenant submitted to the Tribunal’s jurisdictional limit of $15,000.

12. On 2 November 2021, the tenant wrote to the Tribunal requesting a 7 day extension of time to 12 November 2021 to provide her documents as her mother had passed away. The Tribunal granted the 7 day extension of time on 2 November 2021 and a 4 day extension to the landlord.

13. On 10 November 2021, the tenant filed a one page submission and some photos, which I have marked as exhibit T2. The tenant did not provide an itemised list of repairs, apart from repeating that the gutter repairs had not been completed. Nor did she provide a sufficient chronology of events, apart from referring to a few dates in her one page document.

Relevant Legislation

14. The tenant has not specified any section of the Act nor any clause of the RTA that she alleges has been breached by the landlord.

15. Notwithstanding and arguably, the issues in dispute raised the question as to whether or not the landlord breached ss 63, 52 and 50 of the Act.

16. Section 63 of the Act requires a landlord to provide and maintain the premises in a reasonable state of repair, having regard to the age of, rent payable for and prospective life of the premises. Pursuant to s 65(2), the Tribunal may make repair orders if it determines that the landlord has breached the obligation to maintain the Premises. In deciding whether to make an order for repairs under s 65(2), the Tribunal may take into consideration whether the landlord failed to act with reasonable diligence to have the repair carried out: s 65(3)(b). Section 65(3A) provides a defence to the landlord and stipulates that a landlord is not in breach unless it had notice of the need to repair or ought reasonably have known of the need to repair.

17. Section 52 of the Act requires that a landlord must provide the residential premises in a reasonable state of cleanliness and fit for habitation by the tenant.

18. The Act was amended on 26 March 2020 to define a series of 7 minimum standards of fitness for habitation: s 52(1A). Relevant to this dispute, three of the new standards require the premises to: (a) be structurally sound and (c) have adequate ventilation and (e) have adequate plumbing and drainage.

19. Section 52(1B)  deems premises to be structurally sound only if the floors, ceilings, walls, supporting structures (including foundations), doors, windows, roof, stairs, balconies, balustrades and railings—

1.  are in a reasonable state of repair, and

2.  with respect to the floors, ceilings, walls and supporting structures—are not subject to significant dampness, and

3. with respect to the roof, ceilings and windows—do not allow water penetration into the premises, and

4. are not liable to collapse because they are rotted or otherwise defective.

20. While s 52(1A) did not apply at the start of Ms Antonaras’ tenancy agreement, the Premises are considered unfit for habitation after 26 March 2020 if they do not meet the 7 minimum standards during the term of the tenancy agreement.

21. Section 50 of the Act states that a tenant has a right to the quiet enjoyment the premises without interruption by the landlord or anyone acting on the landlord’s behalf.

22. Section 44(1)(b) of the Act states that the Tribunal can make an order that the rent payable is excessive having regard to the reduction or withdrawal by the landlord of any goods, services or facilities provided with the Premises.

Hearing on 30 November 2021 – Consent Orders

23. The matter was listed for a 90 minute hearing before me on 30 November 2021. It was held by virtual hearing in light of the current Covid-19 restrictions. Mr Spackman appeared for the respondent and the tenant represented herself.

24. Pursuant to the Consent Orders the landlord agreed to:

1. give a rent reduction by way of a payment of $1,200 by 14 December 2021 (order 1) (Money Order);

2. Carry out various repairs and inspections (Work Orders) as follows:

1. carry out various guttering and down pipe repairs by 15 December 2021, including (i) replacing the damaged rusted front gutters above the front door, (ii) replacing the damaged front down pipe, (iii) readjusting all guttering as required, (iv) replacing damaged flashing above the front door, (v) installing a back tray to the sky light (vi) unblocking the down pipes (vii) installing two whirly birds on the roof, and (viii) upon completion of the guttering works, patching and painting all affected internal walls (order 2).

2. inspect the sub-floor by 4 December 2021 (order 3); and

3. subject to the inspection in order 3, undertake any required work to the sub-floor and foundations by 5 February 2022 (order 4)

3. The tenant was given leave to renew the proceedings in the event the landlord did not comply with the Work Orders (order 5).

25. Mr Spackman said the inspection carried out by the landlord’s contractor had identified various repairs. He had instructions that the landlord would carry out the above list of repairs.

26. The tenant advised the Tribunal on 30 November 201 that (i), (ii) and (iv) of the Work Orders had already been completed by the landlord the previous week, but otherwise did not object to the repairs.

Application to re-open

27. On 9 December 2021, the tenant sent an email to the Tribunal Registry seeking clarification of the Consent Orders. The tenant stated: “Unfortunately the Tribunal member did not make any orders in relationship to my original applications. Orders (187 1D) non economical lost and economical lost. Only orders 65(1) a landlord carry out repairs were made… I would appreciate an explanation or what process this involves and what the next phase of this process is”.

28. After the tenant corresponded back and forth with the Registry, the Tribunal issued a notice to the parties on 30 December 2021 that the matter would be listed for Directions and Conciliation on 3 February 2022 to deal with the matters raised by the tenant.

29. On 3 February 2022, at the Directions and Conciliation Hearing which was held before me by telephone, Mr Spackman appeared for the respondent and the tenant represented herself.

30. The parties made oral submissions as follows.

31. Mr Spackman opposed the listing of the matter on grounds the dispute had been finalised on 30 November 2021. He submitted that he had a recollection of the tenant being asked at the hearing on 30 November 2021: “does she accept the offer in full and final satisfaction of the claim”. It was a matter for the tenant to appeal if she was not satisfied with the Consent Orders and he had written to her to inform her of this and the tenant had informed Mr Spackman that she was taking advice concerning lodging an appeal.

32. The Consent Orders had been complied with; the Money Order had been paid and the Work Orders had been completed. Mr Spackman thus opposed the grounds of the tenant’s application to relist, which he submitted was in fact a renewal application without proper foundation, as there was no jurisdictional basis to renew the application under Clause 8 Schedule 4 of the Civil and Administrative Tribunal Act 2013 and the tenant had made no mention in her email to the Tribunal that the respondent had failed to comply with the Work Orders.

33. Mr Spackman opposed the matter being stood over for a formal hearing and submitted instead the application should be dismissed.

34. The tenant submitted she was uneducated and had a learning disability and had “accepted whatever [Mr Spackman] offered” at the time. She wanted an opportunity to be heard on all her claims. She raised going to “A Current Affair”. She was satisfied with the amount received for the rent reduction aspect of her claim.

35. The tenant agreed that the Work Orders had been completed, but she was also not satisfied with the workmanship of the gutter repairs and the flooring repairs. The gutters were still blocked and “gurgling”. The flooring contractors had been out that day (3 February 2022) and the day before but a gap in the flooring still remained.

36. I note that as at the date of the Directions Hearing, the date for completion of any sub-floor and foundation repairs (5 February 2022) had not yet passed.

37. Whilst the tenant made no reference in her email to the Tribunal Registry to any specific section of the Act as a basis for her request to reopen the matter, I have treated her request not as a renewal but as an application under s 188 of the Act to vary the Consent Orders.

38. Under s 188 of the Act the Tribunal has broad powers. The section provides:

39. The Tribunal may, in any proceedings before it under this Act, make any one or more of the following orders—

1. an order that the Tribunal may make under this Act,

2. an order that varies or sets aside, or stays or suspends the operation of, any order made in proceedings or earlier proceedings,

3. any ancillary order the Tribunal thinks appropriate,

4. an interim order.

40. Following oral submission, I made a preliminary finding that there was sufficient basis to consider that the Compensation Claims were not part of the settlement but that they should be allocated a formal hearing so that a determinative finding could be made. If the determinative finding was such that the Compensation Claims were not part of the settlement, the Compensation Claims were to be determined on their merits at that hearing.

41. In my Reasons dated 3 February 2022 (paragraph 7), I noted that the tenant was satisfied that the rent reduction aspect to her claim had been resolved and she had received payment of $1,200 and she did not dispute that amount.

42. I made directions for the tenant and landlord to file and serve documents and submissions addressing the threshold estoppel issue and the substantive issues of liability and loss by 17 February 2022 and 3 March 2022 respectively (orders 2 and 3) with the tenant to file any documents and submissions in reply by 10 March 2022 (order 4). I stood the matter over for a formal hearing for all issues to be determined.

Hearing on 15 March 2022 - procedural matters and documents and submissions relied upon

43. At the hearing which took place before me on 15 March 2022, the same parties again appeared by telephone.

44. The tenant gave sworn oral evidence and relied on documents filed and served on:

1. 19 October 2021 (including 16 photos) (Exhibit T1)

2. 10 November 2021 – 1 page submission (including 24 photos) (Exhibit T2)

3. 14 February 2022 – 3 page submissions and documents and 20 photos (Exhibit T3).

4. 7 March 2022 – duplicate of 3 page submissions and documents in exhibit T3 (minus photos) (Exhibit T4)

45. Mr Spackman appeared on behalf of the respondent. He relied upon:

1. documents filed on 21 October 2021, including Parameters of Negotiation and emails (Exhibit L1)

2. submissions and documents filed 1 March 2022 and including contractor reports (Exhibit L 2).

Documents filed by tenant after conclusion of hearing without leave

46. After the hearing had concluded, the tenant filed without leave two pages of submissions dated 15 March 2022. The front cover sheet of those documents stated they had been emailed to the respondent. Whilst I have read the submissions, given they were served after the hearing and without leave to do so and it being uncertain if they have been received by Mr Spackman, I have not afforded them any great weight but note that many of the matters had been raised by the tenant previously.

No transcript

47. A copy of the transcript of the hearing on 30 November 2021 had not been provided by either party. The applicant advised that she was not aware that she could obtain a transcript of the recording. Mr Spackman advised he had requested a copy of the Tribunal’s recording but had been unable to have it transcribed in time for today’s hearing.

Onus of proof

48. The onus is upon the tenant to prove the Consent Orders were not final. If she is successful, she must then prove her substantive claim on the balance of probabilities, which is the civil standard of proof.

Estoppel – tenant’s evidence and submissions

49. The applicant reiterated that she did not consent to the Consent Orders as being a final settlement. She felt bullied and taken advantage of by Mr Spackman. Her mother had recently passed away, she had no strength and she did not understand the settlement process.

50. Prior to the hearing, she was given an extension of time to file her documents in support of her claims and she went to a lot of trouble to prepare them and expected all her claims to be dealt with, which included the rent reduction for not being able to use the Premises to their full capacity and the Compensation Claims. The Consent Orders make no reference to her claims of economic and non-economic loss. She accepted the money offer for the rent reduction only. She submitted (in exhibit T3) that she was “not happy with getting 6 months rent payback at half the rent” but “reluctantly accepted it as it would have be[en] too complicated for me to dispute”.

51. When asked by the Tribunal why she did not appeal, the tenant replied that she was aware she could appeal but that to do so would be a lot of work and it was a technical process that confused her. She had instead sent many emails to the Registry.

52. When asked by the Tribunal as to why the appeal and settlement process was not explained to her by her legal advisers, the tenant replied that whilst she had taken advice from Legal Aid, she suffers from a learning disability and thus had trouble understanding their advice.

53. Her daughter had assisted her prepare for the hearing and when she told her about the decision, her daughter said to her: “where’s the rest of it; where’s the damage to my furniture?” Her Tenant Advocate told her to “ask for a bit more”.

Estoppel - landlord’s evidence and submissions

54. The Consent Orders were final and all encompassing. The appropriate course to the tenant was to appeal. The tenant cannot now seek to re-open the settlement or re-visit the final orders if she has changed her mind.

55. The tenant was fully aware of her legal obligations and right to appeal as she was advised by Legal Aid and wrote to Mr Spackman after the Consent Orders had been made acknowledging the time frame in which she could appeal.

56. The tenant is prevented from re-opening the matter according to the principles of cause of action estoppel, known also as res judicata. The cause of action for compensation has been determined and cannot now be asserted as it has merged in the judgment and lost its separate existence. Further, the doctrine of anschun estoppel prevents the tenant from pursuing the claim for compensation which should have been pursued. Finally, the landlord submits the attempt by the tenant to re-open is an abuse of process as the tenant seeks to make the same application that has previously been finalised.

54. Each of the contentions appeals to the Judiciary’s concern to promote finality in the conduct of litigation.

Findings - estoppel

58. I was not provided with a sound recording or transcript of the hearing on 30 November 2021. It is upon the tenant, as the party seeking to challenge the finality of Consent Orders, to prove otherwise and to provide a copy of the transcript. The tenant was afforded an opportunity to do so when the parties were given directions to make submissions, but she did not avail herself of that opportunity in circumstances where she had obtained legal advice.

59. Whilst the tenant has lodged no medical proof of her learning disability, I accept that she may have such difficulties, however she has been assisted by her sister and has had the benefit of legal assistance.

60. There is no evidence to suggest that she was bullied or taken advantage of.

61. In the ordinary course of an unfinalised matter, I would have adjourned the proceedings, which I did not do in this matter.

62. Parties will often give up a portion of a claim in the spirit of compromise to achieve a settlement. Whilst the tenant submits she did not receive any money for the Compensation Claims which were not determined, the Work Orders made were over and above the single repair order that the tenant sought. The tenant has not stated that she did not agree to the Work Orders.

63. The tenant also submitted at the final hearing that the Money Order for the rent reduction represented less compensatory value than she expected or felt entitled to and she had “reluctantly” agreed to it. This is inconsistent with her earlier oral submission on 3 February 2022 that she was satisfied with the amount of rent reduction.

64. In the absence of a transcript recording the tenant clearly stating she was not settling the entire claim, I am not satisfied that the tenant raised at the hearing on 30 November 2021 that she did not agree to the settlement as being final.

65. For all these reasons, I find that the Consent Orders were final and binding and the proceedings finalised and I decline to make further orders.

66. If I am wrong, I have considered the tenant’s substantive claim below.

Applicant’s evidence and submissions – substantive claim

Structural damage to Premises

67. The Premises are 100 years old and have been neglected.

68. In April 2019, the tenant reported flooding in the back yard due to a broken and rusted down pipe. She relies on five photos of down pipes, some which show a small patch of water at the base and others that show rust and peeling paint.

69. In April 2019, the landlord arranged for a plumber and then a roofer to inspect. She says she was told by the roofer that water had nowhere to go and it was pooling under the house. It appears the roofer commenced works but did not complete them.

70. She followed the matter up on 24 June 2019: “not heard of any work of gutters yet”.

71. On 30 June 2019, Mr Graeme De-Villiers, a representative of the landlord inquired if the contractors had attended and she replied they had not.

72. On 11 November 2019, she requested by email that someone look at a damp wall in the lounge room. She made no mention of the gutters.

73. On 21 November 2019 she wrote to a representative of the landlord: “there is a [g]utter recall that has not been completed hence the rising damp in my lounge room that was discovered by a NBN TEC a couple of months ago…”

74. On 23 November 2019, the tenant reported that the blinds in the front room had fallen down “due to rising dampness/because of the unfinished gutter work”. On 27 November 2019 she chased up by email the rising damp and failure to repair the gutters.

75. On 9 December 2019, she received a letter from the NSW Department of Planning Industry & Environment that a maintenance contractor, Broadspectrum would “inspect the living room for rising damp and any associated issues”.

76. On 9 March 2020 she wrote to the landlord’s representative: “my gutters were supposed to be completed. The work carried out was half done. It must be nearly a year ago. Please look into it…. The back gutter is falling and they need cleaning again.”

77. On 20 May 2020 she wrote again: “I’m still waiting for the gutters.”

78. On 20 August 2020 she sent a text message that no one had contacted her.

79. On 22 July 2021 she sent an email to client services officer, Sarah Trovato referring to the gutter work not completed and the gutters overflowing. In the email she reported mould for the first time and advised of her “medical history of nasal congestion/problems and severe allergies”. She sent another email on 22 July 2021 stating: “something better be done soon about the gutters. The mould as you can see from photos is getting into my chest of draws and clothes, it’s up against the wall which I’m constantly wiping mould spores off.” She received a response on 23 July 2021 that her email had been sent to “the maintenance line” and there may be a delay due to Covid.

80. On 10 August 2021, she sent an email to Ms Trovato raising the gutters and stating that “the [filing cabinet] in my front room is rusting”.

81. On 23 September 2021, she sent an email chasing up gutter repairs and mould.

82. On 23 September 2021, she received an email from Ms Trovato that a work order for the gutters had been raised on 23 July 2021 and: “once the guttering issues have been rectified we will be able to look into repairing the damage caused internally.”

83. She submits that “apparently the damage was so severe that a big gap, hole was found on the roof.”

84. As at the date of the hearing, the gutters have still not been properly cleaned in contravention of the Work Orders and mould is still present.

Mould

85. The tenant says that recurring mould had arisen in the last 12 months as a result of the respondent’s delays in attending to the gutters.

86. Her submissions dated 7 March 2022 reflect she claims approximately $9,000 (reduced from the initial $11,000) for loss of furniture goods and expenses as follows:

87. She firstly claims damage to an antique 18^th century red cedar and walnut veneer chest of drawers which was an heirloom and had belonged to her late mother. It was located in her bedroom against one of the walls, which was covered in mould. Mould penetrated the back of the chest and entered the drawers. Wiping and cleaning the mould does not fix it as there are mould spores on the backing. She estimates its value is $7,000.

88. He clothes stored in the chest of drawers have been ruined. She relies on photos of a black jacket, puffer vest, underwear, lace top and white top. She estimates their value to be $1,200.

89. Her four draw metal brownbuilt filing cabinet is “riddled with mould” and has rusted on the bottom. She estimates its value to be in the range of $400.

90. She relies on photos of mould on the drawers, cabinet and walls.

91. She also spent money on cleaning products and dehumidifiers which she estimates to be $499. She relies on photos of a “Zilch” dehumidifier refill.

92. She was unaware she had to provide receipts for any damaged items or out of pocket expenses.

93. The mould has affected her physical health as she has a medical history of nasal congestion and severe allergies.

Non-economic loss

94. The tenant also claims loss of $3,000 ($1,000 for each year) for distress, anxiety and disappointment as a result of the landlord’s failure to repair the gutters and mould. She has been diagnosed with hypertension. She has suffered inconvenience in having to wait for contractors to show up and dealing with the wrong tradesmen attending, and the inconvenience of having to keep her windows open all of the time in an attempt to get rid of the damp smell. She could not enjoy her back yard due to water pooling at the base of the gutters which overflowed into the backyard and destroyed her plants and took days to drain. She has been left “mentally and physically exhausted” due to the incompetency of the landlord.

Respondent’s evidence and submissions – substantive claim

95. On 23 July 2021, a work order was raised to look at the guttering, water ingress and mould but the Covid lock down restrictions prevented this from being carried out expeditiously.

96. On 7 October 2021, the contractor attempted to make contact with the tenant and on 8 October 2021 attended the Premises to undertake an inspection. The tenant refused access and would not sign paper work. The tenant refused access again on 14 October 2021.

97. An inspection was carried out on 1 November 2021 pursuant to the access order made by the Tribunal on 22 October 2021. No mould was detected, but a list of repairs was identified.

98. Following the Directions Hearing on 3 February 2022 when the tenant advised the Tribunal she was not satisfied with the workmanship of order 2(c) of the Consent Orders (gutter repairs/readjustment of gutters) and order 4 (sub-floor repairs), on 4 February 2022, Mr Spackman inquired within the relevant department as to whether these works had been completed to a satisfactory standard. On 9 February 2022, he was advised that “all works have been completed and have been referred to compliance awaiting their inspection outcome” (page 17 of exhibit L2). The landlord relies on an email dated 10 February 2022 which states: “Ventia [the contractor] rectified the defects and Compliance have now passed” (page 25 of L2).

99. The landlord has provided two reports following inspections on 4 January 2022 and 6 December 2021 to confirm the Work Orders have been completed.

100. There is no evidence to support the tenant’s contention the gutters presently do not function.

101. The tenant has provided no receipts to substantiate the purchase of clothes, or in the alternative allowed for any depreciation.

102. The tenant has provided no evidence of what attempts were made to try and clean the mould affected clothing.

103. The tenant did not mitigate her main loss as she kept the chest of drawers positioned up against a wall in a room that was allegedly exposed to potential mould and damp.

104. The respondent made no submissions on non-economic loss.

Findings – Compensation Claims

Liability

105. As mentioned, the landlord has a duty to provide and maintain the Premises in a reasonable state of repair in accordance with s 63 of the Act.

106. The tenant alleges a lengthy delay by the landlord in repairing the gutters.

107. Whilst it is apparent from the tenant’s emails tendered that the tenant raised the problem with alleged overflowing gutters multiple times between April 2019 and July 2021, being some 27 months, she did so intermittently; for instance she did not raise the issue for a year between August 2020 and July 2021. I accept that from March 2020 Covid restrictions limited the landlord’s ability to inspect and repair expeditiously. I accept that the landlord also experienced problems with access by the tenant.

108. It appears some gutter works were done in 2019, but it is unclear exactly what the scope of that work was and what work required completion. There is no expert report by a plumber or roofer attesting to any initial or ongoing problems with the gutters.

109. The information alleged to have been conveyed to the tenant by a NBN workman about rising damp I find to be merely hearsay.

110. There is no independent evidence of structural damage to the Premises caused by cracks on concrete or concrete siding as the tenant asserts. There is no evidence of a hole in the roof or structural damage to any walls, apart from one photo of a crack in the bedroom wall. There is no evidence of water penetration into the Premises.

111. The tenant did not move out nor was she relocated due to the gutters and mould.

112. The tenant has not provided any photos of the gutters. Whilst the five photos the tenant has provided of a green drain pipe indicate that there is no drain beneath it, there is no expert evidence of inadequate drainage at the Premises. The evidence of the unidentified roofer who allegedly informed the tenant that “the water had nowhere to go so it was pooling and going under the house” is hearsay evidence. Drainage or ventilation did not form part of the work orders sought or agreed to.

113. Whilst the landlord agreed to carry out the Work Orders, it did not admit to any breach of the duty to maintain the Premises.

114. As at the date of the hearing, there is no evidence to support the tenant’s contention that the gutter repairs are not now complete nor that the workmanship is poor. I accept the landlord’s evidence that the Work Orders have been carried out and certified as at 10 February 2022. Any complaint with that workmanship should be brought by way of a renewal.

115. Whilst I accept from the tenant’s photos that there was mould present, mould was not reported until 22 July 2021 and the landlord raised a work order the next day.

116. Further, there is no mould report attesting to how significant the mould was and whether the mould resulted from the gutters or some other reason beyond the landlord’s control.

117. There was no medical evidence such a doctor’s report that the existence of the mould or the state of the Premises was having an adverse effect on the health of the tenant (such as for instance a report as to her proclaimed high blood pressure) and was necessitating the carrying out of additional cleaning work by the tenant due to the recurring nature of mould.

118. There is no evidence of mould being present the day the Consent Orders were made and mould removal was not part of the Work Orders.

119. As envisaged by s 63(1) and s 65(2), I have also had regard to the fact the Premises are very old and the fact the tenant pays a minimal rent and in such circumstances an occupant’s expectations cannot be unduly unreasonable.

120. For all of the above reasons, I find that whilst there may have been some failure of the respondent to act with reasonable diligence to complete the repairs to the gutters, the landlord does not appear to have been on notice of the precise nature of the ongoing problem and what was required to complete the repairs. The tenant has not been able to prove what was done and what was still required to be done. Arguably the defence in s 65(3A) is made out.

121. I also find there has been no breach of the obligation under s 52 to provide the Premises fit for habitation as the tenant has not proven on balance that the Premises were not structurally sound or had inadequate ventilation or had inadequate plumbing and drainage.

Economic loss

122. Even if I had found a breach, there is insufficient evidence of economic loss. The tenant seeks $1,200 for destroyed clothing, but has not provided receipts to prove ownership of the clothes. The photos of a few clothes are undated.

123. The tenant claims an unsubstantiated amount for cleaning products.

124. The tenant seeks $7,000 for the chest of drawers. She not disposed of it, but says it is damaged by mould. It has not buckled nor has it been affected by water. It has mould on it which the tenant wipes off. Ms Antonaras has not explained why it could not be rectified by having it treated for mould spores. I find the amount claimed to be excessive.

125. For all above reasons, I do not find the claim for economic loss to be proven.

Non-economic loss

126. I accept that the type of loss claimed by Ms Antonaras for stress, frustration, disappointment and inconvenience is recoverable as a separate head of loss given the tenancy agreement is a contract for enjoyment pleasure and relaxation and therefore falls under the exception to the general rule that damages for distress and disappointment are not recoverable: Baltic Shipping Co v Dillon [1993] HCA 4.

127. I also accept that distress, disappointment and anxiety do not constitute a personal injury for the purposes of the Civil Liability Act 2002 (NSW) (CLA) and s 16 of the CLA does not apply to limit such loss: Moore v Scenic Tours Pty Ltd [2020] HCA 17.

128. Under s 50, the tenant has a right to quiet enjoyment of the Premises. The tenant says in effect that this right has been contravened as a result of the landlord failing to repair the Premises, causing her to suffer “unprecedented” distress, emotional and mental sickness, fatigue, stress, inconvenience and disappointment over a three year period as a result of the landlord’s delay and incompetence.

129. I am satisfied that the tenant suffered a substantial interference with her enjoyment of the Premises by the presence of mould and dampness and water ingress in the garden and that she has been inconvenienced by arranging access for trades and dealing with tradesmen at the Premises and chasing up the respondent, all over a prolonged period. I am satisfied there has been a breach of s 50.

130. However, given there is no psychiatrist or psychologist report attesting to any adverse affects of mould on the tenant’s mental health, I am not persuaded that the tenant’s state of mind has been affected or that she suffers from any of the mental ailments to the extent that she attests, such that I would have made an award for non-economic loss.

131. Further, I am of the view that the tenant has already been sufficiently compensated for the interference of her enjoyment of the Premises and loss of amenity and the inconvenience of arranging repairs by way of the rent reduction for the reasons that follow.

132. In Makowska v St George Community Housing Ltd [2021] NSWSC 287, Basten J in upholding the decision of the Appeal Panel said at [46] it is possible that conduct of a landlord may constitute a breach of the tenant’s right to quiet enjoyment and a reduction or withdrawal of facilities. However, where the only loss is non-economic loss, such as inconvenience or loss of amenity (as opposed to damage to goods), it would be inappropriate to award damages by way of compensation and provide a reduction of rent, as it would amount to double compensation. In this regard, Makowska followed the Appeal Panel decision of Roberts v NSW Aboriginal Housing Office [2017] NSWCATAP which found at [86]: “That is not to suggest that a claim for damages for loss of quiet enjoyment and an order for the reduction of rent are mutually exclusive forms of relief. Depending on the claims made, there may be facts common to both types of claim which would need to be taken into account in order to avoid double compensation. For example if the premises (or part thereof) cannot be used in the manner intended or its use is in some way impaired by reason of a landlord’s breach, it may be inappropriate to both reduce the rent and make an award of damages for loss of use.”

133. Basten J’s decision has since been upheld by the Court of Appeal in October 2021: Makowska v St George Community Housing Ltd [2021] NSWCA 249.

134. The amount that has already been paid to the tenant by the landlord was framed by the tenant as a rent reduction and claimed under s 44(1)(b) for a reduction of withdrawal of services and facilities. I am satisfied there would be a double dip between that claim and this claim for non-economic loss in so far as it related to an interference of the tenant’s quiet enjoyment and the inconvenience and loss of amenity she suffered.

135. I would therefore not allow any amount for non-economic loss for breach of s 50 of the Act.

136. As a final comment, I note that whilst time limitations under s 190 and Regulation 39(9) of the Residential Tenancies Regulation 2019 have not been raised by either party, the three month limit for bringing a claim for breach may impact upon the tenant’s ability to pursue the Compensation Claims.

137. I make orders as above.

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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

Decision last updated: 22 June 2022