Antonia Heyden v NSW Land and Housing Corporation

[2014] NSWCATCD 74

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Antonia Heyden v NSW Land and Housing Corporation [2014] NSWCATCD 74

Hearing dates:

2 May 2014

Decision date:

09 May 2014

Before:

JA Levingston, General Member

Decision:

The time for filing the application is extended up to and including 28 March 2014.

The claim for compensation for non-economic loss is dismissed.

The respondent is to pay the applicant the sum of $3,193.73 as compensation for economic loss, on or before 5 June 2014.

Catchwords:

Residential tenancy - breach by landlord - failure to maintain or repair - claim brought out of time - extension of time to bring claim - compensation for economic loss - claim for non-economic loss dismissed

Legislation Cited:

Civil and Administrative Tribunals Act 2013 (NSW) s 41
Civil Liability Act 2002 (NSW) s 16
Residential Tenancies Act 2010 (NSW) s 63, 187(1)(d) and 190
Residential Tenancy Regulation 2010 (NSW) cl 22(9)

Cases Cited:

Ahluwalia v Robinson [2003] NSWCA 175
Austin v Bonney [1999] QCA 8
Brisbane South Regional Health Authority v Taylor [1996] HCA 25; HYPERLINK " \o "View LawCiteRecord" (1996) 186 CLR 541
Budd v Secretary, Department of Education, Employment and Workplace Relations HYPERLINK " \o "View Case" [2008] FCA 1540
Comcare v A'Hearn HYPERLINK " \o "View Case" [1993] FCA 498; HYPERLINK " \o "View LawCiteRecord" (1993) 119 ALR 85
De Chazal v Scala [2010] NSWCTTT 135
Dix v Client Compensation Tribunal HYPERLINK " \o "View LawCiteRecord" (1993) 1 VR 297
DHLD and Executive Director, Social Security Appeals Tribunal [2010] AATA 377
Doyle v Chief of Staff HYPERLINK " \o "View Case" [1982] FCA 124; HYPERLINK " \o "View LawCiteRecord" (1982) 42 ALR 283
Edwards v Savires [2001] NSWRT 332
Flight Centre v Louw [2011] NSWSC 132
Harris v Northern Sandblasting (1997) 188 CLR 313
Hunter Valley Developments Pty Ltd v Cohen HYPERLINK " \o "View Case" [1984] FCA 176; HYPERLINK " \o "View LawCiteRecord" (1984) 3 FCR 344
Jones v Barlett (2000) 205 CLR 166
Lucic v Nolan HYPERLINK " \o "View LawCiteRecord" (1982) HYPERLINK " \o "View LawCiteRecord" 45 ALR 411
Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313
Ordukaya v Hicks [2000] NSWCA 180;
Page v Durrant [2010] NSWCTTT 127
Phillips v Australian Girls' Choir Pty Ltd & Anor [2001] FMCA 109
Ralkon v Aboriginal Development Commission HYPERLINK " \o "View Case" [1982] FCA 153; HYPERLINK " \o "View LawCiteRecord" (1982) 43 ALR 535
Re Mulheron and Australian Telecommunications Corporation HYPERLINK " \o "View LawCiteRecord" (1991) 14 AAR 42
Roberts v Bell [2000] NSWRT 6
Robinson v Fretin [2006] NSWSC 598
Sakauo v Williams [2005] NSWCA 405
Stannus v Graham (1994) Aust Torts R ¶81-293
Shrestha v Crandell Pty Ltd [2010] NSWCTTT 240
Wedesweiller v Cole (1983) 47 ALR 528

Texts Cited:

-

Category:

Principal judgment

Parties:

Antonia Heyden (applicant)
NSW Land and Housing Corporation (respondent)

File Number(s):

SH 14/17080

Application

1. This is an application by the tenant for compensation under the Residential Tenancies Act 2010 (NSW) (RTA) s 187(1)(d) arising from breaches of the landlord’s obligations under the residential tenancy agreement (the Agreement) under RTA s 63: see RTA s 190. The applicant also claims compensation for distress, discomfort, disappointment and inconvenience caused by the breach of RTA s 63. The applicant has also applied under the Civil and Administrative Tribunals Act 2013 (NSW) (CATA) for an extension of time to commence the claim out of time.

Appearances

1. The applicant appeared by Ms El Gazzar, Tenant’s Advocate, Northern Rivers Community Legal Centre.

1. The respondent did not appear although a notice of the hearing was sent to the respondent by post in accordance with the usual practice of the Registry and has not been returned undelivered. The applicant is entitled to have the matter determined in default of an appearance by the respondent and it is in the interests of justice to do so.

Jurisdiction

1. The Tribunal has jurisdiction to determine disputes concerning residential premises to which the RTA applies.

Preliminary issue - extension of time to bring a claim

1. The first application is for an extension of time to bring the application after the time provided in the Residential Tenancy Regulation 2010 (NSW) (RTR) clause 22(9) (Times for making applications to Tribunal…), which relevantly provides:

…

(9) 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. The claim was filed 28 March 2014, but the applicant was aware of maintenance issues with the premises from about June 2013 which is when she became aware of the breach. Unless she obtains an extension of time, her claims are out of time under RTA s 190(1) and RTA cl 22(9).

1. The Tribunal has a discretion to extend the time to  bring an application under CATA s 41 (Extensions of time) which provides:

(1)   The Tribunal may, of its own motion or on application by any person, extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation.

(2)   Such an application may be made even though the relevant period of time has expired.

cf: Consumer, Trader and Tenancy Tribunal Act s 81 (Extensions of time)

1. NCAT has a wide power to extend the time for doing anything under any legislation, despite anything to the contrary under that legislation, and including an extension granted after the time has expired.

1. The circumstances of this matter are that when the applicant moved into the premises she advised the respondent in the Ingoing Condition Report of many complaints about the condition of the premises. Issues included a broken gate and clothesline but most importantly the major issue was cracked and broken roof tiles which allowed an ingress of water through the roof and ceiling causing water logged walls, mould in the lounge room; the main bedroom; laundry and front veranda; mouldy carpets; and damage to the applicant’s goods and chattels for which she makes no claim. There were a number of telephone calls and letters from the respondent including an inspection of the premises on 11 July 2013; a gate repair on 12 August 2013; clothesline repair on 15 August 2013; an unsuccessful silicone patching repair to the roof on 19 September 2013; and a further inspection of the roof on 24 December 2013. The applicant was dissatisfied with the slow progress and terminated the tenancy on the grounds “lack of maintenance”, giving vacant possession to the respondent on 17 January 2014. The applicant incurred expenses for which she seeks compensation: Storage costs of $576.00; purchase of storage boxes $712.23; purchase of an air purifier $69.00; and removalist costs of $336.50; totalling $1,693.73. I should add that the applicant is undergoing treatment for Cancer at the Gold Coast University Hospital as an outpatient and is unwell.

Extension of time, factors

1. The granting of an application for extension of time involves exercise of discretion. The power to extend time in CATA s 41 is a statutory exception to the general rule that a claim cannot be brought once time has expired for bringing the claim. The question is whether justice will be served by granting an extension of time and overturning the general rule: Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541.

1. An extension must not be granted unless on the relevant facts it is proper to do so, noting that as a general principle, applications or proceedings commenced outside of a prescribed time limit will not be considered: Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344.

1. The grant of an extension of time must be fair and equitable in the circumstances and there must be an explanation for the delay: Hunter Valley Developments Pty Ltd v Cohen[1984] FCA 176; (1984) 3 FCR 344, However, there is no rule or requirement that there must be an acceptable reason for delay: Comcare v A’Hearn[1993] FCA 498; (1993) 119 ALR 85; and inexcusable delay by a solicitor will not operate against a party: Phillips v Australian Girls’ Choir Pty Ltd & Anor [2001] FMCA 109 per McInnis FM.

Principles

1. The principles to be applied in considering an application for an extension of time  were listed in Re Mulheron and Australian Telecommunications Corporation(1991) 14 AAR 42  per O’Connor J and modified in Comcare v A’Hearn[1993] FCA 498; (1993) 119 ALR 85, summarized in Phillips v Australian Girls’ Choir Pty Ltd & Anor [2001] FMCA 109 per McInnis FM and approved in Budd v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1540 at [19] per Cowdroy J.

a.   There is no onus of proof upon an applicant for extension of time though an application has to be made. Special circumstances need not be shown, but the court will not grant the application unless positively satisfied it is proper to do so. The ‘prescribed period’ is not to be ignored: Ralkon v Aboriginal Development Commission[1982] FCA 153; (1982) 43 ALR 535 at 550;

b.   It is a prima facie rule that the proceedings commenced outside the prescribed period will not be granted: Lucic v Nolan (1982) 45 ALR 411 at 416;

c.   It is not a pre-condition for success in an application for extension of time that an acceptable explanation for delay must be given. It is to be expected that such an explanation will normally be given as a relevant matter to be considered, even though there is no rule that such an explanation is an essential pre-condition; Comcare v A’Hearn [1993] FCA 498; (1993) 45 FCR 441; Dix v Client Compensation Tribunal(1993) 1 VR 297 at 302. DHLD and Executive Director, Social Security Appeals Tribunal [2010] AATA 377. That does not mean that it is a pre-condition for success in an application for extension of time that the reasons that must be given must themselves compel an extension of time. They are part of the mix factors of factors to which regard must be had;

d.   Action taken by the applicant other than by making an application is relevant in assessing the adequacy of the explanation for the delay. It is relevant to consider whether the applicant has rested on his rights and whether the respondent was entitled to regard the claim as being finalized: Doyle v Chief of Staff [1982] FCA 124; (1982) 42 ALR 283 at 287;

e.   Any prejudice to the respondent, including any prejudice in defending the proceeding occasioned by the delay, is a material factor militating against the grant of an extension: Doyle v Chief of Staff [1982] FCA 124; (1982) 42 ALR 283 at 287. The mere absence of prejudice is not enough to justify the grant of an extension: Lucic v Nolan (1982) 45 ALR 411 at 416;

f.   The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted: Lucic v Nolan (1982) 45 ALR 411 at 416;

g.   Considerations of fairness as between the applicant and other persons otherwise in a like position are relevant to the manner of exercise of the discretion: Wedesweiller v Cole (1983) 47 ALR 528.

1. Having regard to all the facts and circumstances of the applicant, and the principles above, I am persuaded that the applicant is entitled to the benefit of CATA s 41 and an extension of time to file her application should be granted to the time of filing on 28 March 2014.

Facts

1. The relevant facts are:

a.    The applicant is disabled, terminally ill, and requires a carer following cancer treatment including chemotherapy and radiation.  She had been waiting for social housing accommodation for some time and the subject premises were the second and final offer by the respondent;

b.    There was a written residential tenancy agreement between the parties commencing 22 June 2012 at a weekly rent of $153.00, and an Ingoing Condition report was completed by the applicant and returned to the respondent, exhibit A, noting cleanliness and maintenance issues;

c.    In June 2013 and during the tenancy the applicant gave notice to the respondent of (amongst other things) three water leaks through the ceiling and mould in the walls of the lounge room, main bedroom, laundry and veranda; and in the carpets: exhibit A; and the sound of rats or possums in the roof cavity: exhibit B;

d.    On 16 July 2013 the respondent conducted an inspection and there was further communication on various dates including on 23 July 2013 when the respondent commissioned a property survey; and on 12 and 15 August 2013 when it completed repairs to a gate and clothesline respectively, exhibit A;

e.    On 19 September 2013 a tradesman attended and applied silicone to the roof tiles. He opined that the whole roof needed fixing as there were so many gaps in the roof tiles that he did not need a torch: exhibit A. He also observed signs of vermin in the roof cavity: exhibit B;

f.     The roof continued to leak and the respondent continued to say that repairs would be carried out. When it rained, it was as though it was raining in the lounge room and the applicant decided she had to remove her goods and chattels into storage to prevent them being damaged.  She purchased storage boxes at a cost of $712.23; and incurred storage costs of $576.00, exhibit A. On 11 December 2013 she purchased an air purifier at a cost of $69, exhibit A;

g.    The respondent had said that the roof would be repaired by 24 December 2013, but it was not;

h.    On 2 January 2014 the applicant concluded that roof repairs were unlikely to be completed, she arranged to move elsewhere and gave notice to the respondent. She incurred removalist costs of $336.50, exhibit A;

1. On 17 January 2014 the applicant gave vacant possession of the premises to the respondent.

The law

1. A claim for a breach of a residential tenancy agreement is brought under RTA s 190:

(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.

1. The landlord’s duty to provide and maintain the premises in a reasonable state of repair arises in contract: RTA s 63; and although the common law tort of negligence also provides a remedy the Tribunal has no jurisdiction in relation to a common law claim to arising from the landlord’s failure to maintain the premises during the tenancy: Harris v Northern Sandblasting (1997) 188 CLR 313; and negligence by the landlord forms no part of the determination: Robinson v Fretin [2006] NSWSC 598.

1. RTA s 63 (Landlord's general obligation) provides:

(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. RTA s 63(1) is a mandatory obligation of strict liability requiring the landlord to 'provide and maintain' the property 'in a reasonable state of repair having regard to the age of, rent payable for and prospective life of the premises', during the tenancy: Austin v Bonney [1999] QCA 8; Roberts v Bell [2000] NSWRT 6; Edwards v Savires [2001] NSWRT 332.  This obligation should be carried out in a reasonable time and is not excused by conduct and delay caused by tradesmen or suppliers, which provides no defence for a failure to carry out repairs: Shrestha v Crandell P/L [2010] NSWCTTT 240; De Chazal v Scala [2010] NSWCTTT 135; Page v Durrant [2010] NSWCTTT 127. There were many months of delay in this matter from when the applicant informed the landlord in June 2013, and September 2013 when a temporary (and ineffective) silicone repair is done to the roof, and January 2014 when the work had still not been completed.

1. The landlord breaches his or her obligation when two criteria are met: Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313 at 370-371 per Gummow J: First, the landlord receives notice of the defect in the premises so he or she can investigate it, see RTA s65(3)(a); secondly, the landlord fails to carry out the necessary works within a reasonable time; Sakauo v Williams [2005] NSWCA 405; Jones v Barlett (2000) 205 CLR 166; Ahluwalia v Robinson [2003] NSWCA 175; Sakauo v Williams [2005] NSWCA 405; Stannus v Graham (1994) Aust Torts R ¶81-293;  Ordukaya v Hicks [2000] NSWCA 180; Northern Sandblasting P/L v Harris (1997) 188 CLR 313.

1. In this matter the respondent inspected the premises on 11 July 2013, and by letter of 16 July 2013 advised that a “Property Assessment Survey” would be conducted. There was further correspondence and by letter of 31 October 2013 the respondent again advised that a report had been provided on the condition of the roof and was being “validated”.

1. There is no doubt that a reasonable state of repair of premises does not allow for water ingress through the roof as the roof should be in such a  state of repair as to prevent water ingress. The natural consequence of water ingress in this matter was that the walls became saturated or water logged and mould appeared in the several rooms of the premises as described: see the photos at exhibit A.

Economic loss

1. Where the breach is proved, the applicant is entitled to compensation for economic loss: RTA s 187(1)(d); as follows:

a.    Cost of storage boxes $712.23;

b.    Cost of storage $576.00;

c.    Cost of air purifier $69.00;

d.    Cost of removalist $366.00;

e.    Breach of the Agreement $1,500.00;

totalling $3,193.73.

Non-economic loss

1. The applicant also claims compensation for distress, discomfort, disappointment and inconvenience caused by the breach of RTA s 63. Distress, discomfort, disappointment and inconvenience are all claims for non-economic loss involving personal injury.

1. The Civil Liability Act 2002 (NSW) (CLA) provides that damages for non-economic loss cannot succeed unless the severity of the non-economic loss is at least 15% of a most extreme case: CLA s 16(1); Flight Centre v Louw [2011] NSWSC 132. Damages or compensation cannot be awarded where the injury is below 15% of a most extreme case. The best evidence of the applicant is a medical report of Dr Frank G Wyton (undated) which says that the applicant has reported what she believes is “black mould poisoning” from research on the internet, exhibit A, but there is no evidence of any medical investigation of this complaint and any medical opinion. In addition, the report refers to the applicant suffering “untold stress and anxiety” in the context of the respondent’s conduct. Again there is no evidence of an investigation or report with a medical opinion. The applicant carries the onus of proving her claim for non-economic loss and has failed to do so.

1. Accordingly the claim for compensation for non-economic loss is dismissed.

Conclusion

1. I am satisfied that the applicant has proved her case on the balance of probabilities and has suffered losses for which she is entitled to RTA s 187(1)(d) compensation of $3,193.73.

(signed)

JA Levingston

General Member

Civil and Administrative Tribunal of New South Wales

9 May 2014

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.

Registrar

**********

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