Brown v CEO (Housing)& Anor
[2025] NTSC 72
•18 September 2025
CITATION:Brown & Ors v CEO (Housing)& Anor [2025] NTSC 72
PARTIES:BROWN, Kennedy
and
MCNAMARA, Anita
and
JACK, Johnny
and
PEPPERILL, Joanne
and
STAFFORD, Jamesie
v
CHIEF EXECUTIVE OFFICER (HOUSING)
and
CHIEF EXECUTIVE OFFICER (TERRITORY FAMILIES)
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: APPEAL from NORTHERN TERRITORY CIVIL AND ADMINISTRATIVE TRIBUNAL exercising Territory jurisdiction
FILE NO:2023-00352-SC
DELIVERED: 18 September 2025
HEARING DATE: 13 July 2023 and 14 July 2023 with
further submissions filed 1 December 2023, 16 April 2025 and 29 April 2025
JUDGMENT OF: Huntingford J
CATCHWORDS:
NORTHERN TERRITORY CIVIL AND ADMINISTRATIVE TRIBUNAL – application for leave to appeal – question of law – whether leave to appeal is in the interest of justice – whether a substantial injustice would result if the error is not corrected - leave to appeal determined on the merits of each ground.
NORTHERN TERRITORY CIVIL AND ADMINISTRATIVE TRIBUNAL – Residential Tenancies – whether proper weight was given to witness statements – complaint made generally –not necessary for Tribunal to consider every point made - whether Tribunal failed to comply with the rules of natural justice – whether Tribunal erred in giving undue weight to documentary evidence where the authors of those documents did not give evidence –whether Tribunal failed to make relevant findings of fact – whether Tribunal made legally unreasonable findings – no legal unreasonableness found.
LANDLORD AND TENANT - consideration of “subject to this part” in s 57 of the Residential Tenancies Act – whether Tribunal applied the proper meaning to the phrase “reasonable diligence” – Landlord’s obligation is to take all steps that a reasonably prudent landlord would take – consideration of whether Tribunal failed to properly apply s 57 of the Residential Tenancies Act – whether notifications were made “as soon as reasonably practicable” – whether Tribunal correctly applied s 51(1)(a) of the Residential Tenancies Act –whether Tribunal correctly applied s 48(1)(a) of the Residential Tenancies Act – whether Tribunal applied a correct understanding of s 49 of the Residential Tenancies Act – whether Tribunal erred in confining any award of damages for disappointment and distress pursuant to s 122 Residential Tenancies Act – whether Tribunal failed to apply a correct understanding of regulations 3 and 5 of the Housing Regulations 1983 (NT).
Housing Act 1982 (NT), ss 3, 5, 23.
Northern Territory Civil and Administrative Tribunal Act 2017 (NT), ss 141, 53, 105.
Residential Tenancies Act 2018 (NT), ss 19(1), 48, 49, 51, 55, 57, 63, 122.
Limitation Act 1981 (NT), s 44(2)(b)(i).
Evidence (National Uniform Legislation) Act 2011 (NT), s 144.
Housing Regulations 1983 (NT), rr 4, 5.
Interpretation Act 1978 (NT), ss 17, 12.
Supreme Court Rules 1987 (NT), r 82.04(2)(b).
Victorian Civil and Administrative Tribunal Act 1998 (Vic), s 127.
Residential Tenancies Regulations 2000 (NT).
Adjrun v Chief Executive Officer (Housing) [2022] NTSC 42, Badari & Ors v Minister for Territory Families and Urban Housing and Anor [2022] NTSC 83, Baltic Shipping Co v Dillon (1993) 176 CLR 344, Blatch v Archer (1774) 98 ER 969, Booth v An Assessor [2019] NTSC 89, CEO (Housing) v Pepperill [2022] NTCA 1, CEO (Housing) v Pepperill [2024] NTCA 10, DL v The Queen [2018] HCA 26, Foote v Hahlos (Tenancy) [2002] NSWCTTT 855 (13 December 2002), Ho v Powell (2001) 51 NSWLR 572, House v R (1936) 55 CLR 499, Jack v Chief Executive Officer (Housing)(No 2) [2021] NTSC 81, Jones v Dunkel (1959) 101 CLR 298, Kopp v Aughterson [2015] NTRTCmr 6, McGinty v Western Australia (1996) 134 ALR 289, Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431, Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541, Minister for Immigration and Multicultural and Indigenous Affairs v NBDS (2006) 90 ALD 614, Nationwide News Pty Ltd v Rush [2020] FCAFC 115, Pepperill v CEO (Housing) [2023] NTSC 90, Plaintiff M1/2021 v Minister for Home Affairs (2022) 96 ALJR 497, Royal Society for the Prevention of Cruelty of Animals (Vic) Inc v Marson Constructions Pty Ltd [2000] VSCA 38, Shelton v Oaktech Pty Ltd [2011] NTSC 11, Various Applicants from Laramba v Chief Executive officer (Housing) [2023] NTCAT 2, Willis v Whiteside (1987) 2 Qd R 284, Young v CEO, Housing [2020] NTSC 59, Young v CEO (Housing) (2023) 97 ALJR, referred to.
Creake, R, et al, Control of Government Action, 6th ed, LexisNexis, 2022.
Macquarie Dictionary, 5th ed, Macquarie Dictionary Publishers Pty Ltd, Sydney, 2009.
Pearce, DC, Statutory Interpretation in Australia, 10th ed, LexisNexis, Australia, 2024.
REPRESENTATION:
Counsel:
Appellants:M Albert
Respondents: T Moses
Solicitors:
Appellants:Australian Lawyers for Remote Aboriginal Rights
Respondents: Mills Oakley
Judgment category classification: B
Judgment ID Number: Hun2506
Number of pages: 164
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINBrown & Ors v CEO (Housing) & Anor [2025] NTSC 72
No. 2023-00352-SC
BETWEEN:
KENNEDY BROWN
Appellant
AND:
ANITAMCNAMARA
Appellant
AND:
JOHNNY JACK
Appellant
AND:
JOANNE PEPPERILL
Appellant
AND:
JAMESIE STAFFORD
Appellant
AND:
CHIEF EXECUTIVE OFFICER (HOUSING)
Respondent
AND:
CHIEF EXECUTIVE OFFICER (TERRITORY FAMILIES)
Respondent
CORAM: HUNTINGFORD J
REASONS FOR JUDGMENT
(Delivered 18 September 2025)
This is an appeal from a decision of the Northern Territory Civil and Administrative Tribunal (the Tribunal) made on 17 January 2023 exercising its jurisdiction pursuant to the Residential Tenancies Act 1999 (NT) (RTA).[1] It concerns six applications to the Tribunal by tenants of the landlord statutory body known as the Chief Executive Officer (Housing) (CEOH),[2] relating to three separate tenancies in the township of Laramba. The tenants are Mr Jack (Lot 22), Mr Stafford and Ms Pepperill (Lot 63) and Mr Brown and Ms McNamara (Lot 67). The Tribunal proceedings sought orders, mainly for compensation, based upon various alleged breaches of the respective tenancy agreements.
Procedural History
a)On 14 November 2019 three proceedings were commenced in the Tribunal (the 2019 applications). They were:
i) An application by Mr Johnny Jack (2019-02699-CT) seeking orders in relation to his tenancy of a house at Lot 22, Laramba, Northern Territory that:
(1)The landlord install within seven days a filter to remove uranium from the water emanating from at least one tap in the kitchen of the house to within safe drinking water levels in accordance with the Australian Drinking Water Guidelines;
(2)The landlord make emergency repairs to Lot 22 as requested in a notice pursuant to s 58 of the RTA within seven days;
(3)The landlord produce documentary evidence relevant to the application held by it; and
(4)The landlord pay compensation and/or rent repayment to Mr Jack in accordance with s 122 of the RTA as a result of a number of alleged breaches of the tenancy agreement.
ii) An application by Ms Joanne Pepperill and Mr Jamesie Stafford (2019-02718-CT) in relation to their tenancy of a house at Lot 63, Laramba, sought orders in the same terms as Mr Jack’s application, noting different emergency repairs and breaches are claimed and therefore the claims for compensation are different.
iii) An application by Ms Anita McNamara and Mr Kennedy Brown (2019-02722-CT) in relation to their tenancy of a house at Lot 67, Laramba, also sought orders in the same terms as Mr Jack but based upon different allegations of breach and therefore claims for compensation.
On 20 January 2022 the tenants commenced the following proceedings in the Tribunal (the 2022 applications):
a)An application by Mr Jack (2022-00158-CT) in relation to his lease at Lot 22, Laramba, seeking orders that the landlord:
i) Pay compensation and/or rent repayment to the applicant pursuant to s 122(1) of the RTA with respect to the allegations of breach of the tenancy agreement relating to the repair items in an attached list (repairs); and
ii) Rectify any repairs which remain outstanding.
b)An application by Ms Pepperill and Mr Stafford (2022-00162-CT) seeking orders in the same terms as the application filed the same day by Mr Jack, but in relation to different alleged breaches (repair items) specific to their house.
c)An application by Ms McNamara and Mr Brown (2022-00163-CT) in relation to their tenancy at Lot 67 Laramba, seeking orders in the same terms as Mr Jack, but in relation to different alleged breaches (repair items) specific to their house.
During the Tribunal proceedings, it was decided that questions arising from the allegation as to the failure to ameliorate the effects of allegedly unsafe water supply, which formed part of each of the 19 November 2019 applications, would be heard separately. That part of those applications is not relevant to this appeal. The remainder of the issues in the Tribunal were largely claims for breach of the tenancy agreement by the landlord, for which the tenants sought compensation. There were 57 breaches (“repair” items) arising across the six applications, together with claims for repayment of rent and one claim for emergency repairs.
On 17 January 2023 the Tribunal made the following orders in relation to the repair and compensation applications in each of the proceedings:
a)Mr Jack’s 2019 application, (2019-02699-CT), was dismissed in its entirety (save for the claim relating to unsafe water supply, which remains on foot in this and the other two 2019 applications);
b)The landlord was ordered to pay to Ms Pepperill and Mr Stafford a total of $4,400 in compensation in relation to their 2019 application, (2019-02718-CT);
c)The landlord was ordered to pay to Ms McNamara and Mr Brown a total of $5,500 in compensation in relation to their 2019 application, (2019-02722-CT);
d)The 2022 application of Mr Jack (2022-00158-CT) was dismissed in its entirety;
e)The 2022 application of Ms Pepperill and Mr Stafford, (2022-00162-CT) was dismissed in its entirety; and
f)The landlord was ordered to pay to Ms McNamara and Mr Brown a total of $200 compensation in relation to their 2022 application, (2022-00163-CT).
Each of the tenants seeks leave to appeal from the decisions in their respective proceedings. There are 22 proposed grounds of appeal, several of which have a number of “sub-grounds”. In addition, the landlord has filed (subject to leave) a cross appeal which raises four grounds. Finally, the tenants rely upon a notice of contention, raising one issue.
In the Tribunal all six proceedings were heard together.[3] The approach on appeal was shaped by the approach taken before the Tribunal. The Tribunal proceeding was framed by reference to an “agreed list of outstanding issues to be determined” (list of issues) which is set out in the Tribunal’s decision at [18].[4] With the exception of issues 1 and 2, the list of issues does not relate to specific tenancies or premises but appears to have been intended to refer to each of the tenancies, in so far as a particular issue or question might be relevant to a particular alleged breach. While an attempt to narrow the issues in the absence of pleadings was appropriate, each separate claim alleges a breach of a tenancy agreement and the focus must first be upon whether the breach has been proven. Whether any compensation should be awarded is a secondary consideration. With the benefit of hindsight, it may have been more helpful to the Tribunal, and the parties, to direct attention to a traditional breach/causation/quantum methodology, rather than focusing upon the list of issues.
The tenants’ position before the Tribunal, and this Court, was that these proceedings would serve as test cases, resolution of which would assist in determining a further 24 outstanding proceedings relating to tenancy disputes between the landlord and individuals at Laramba still before the Tribunal. The landlord took a different view, stating that although the applications proceeded in the Tribunal as “informal” test cases there was never any agreement between the parties as to how these evidence-specific claims could be used to determine other claims.[5]
Although there are some common legal issues arising, and the test case approach is understandable on that basis, at least at the time the applications were initially filed, there are significant limitations as to the utility of a decision in one tenancy dispute as a template for resolution of another. The most obvious problem is that each dispute as to a particular allegation of breach, whether it relates to failures of habitability, security or failure to repair, or a combination of those, and any resultant claim for compensation, must be assessed according to its own facts. Therefore, it is very likely that there will be different outcomes in different cases, with little flowing by way of precedent.[6]
The appeal
A detailed summary of the grounds of appeal at this point in the reasons would be lengthy, and unenlightening. Suffice to say that the appellants relied upon four broad categories of asserted legal error. They are summarised as: incorrect application of the law (grounds 5, 5A, 7, 8, 10, 11, 12, 14, 15 and 17); failure to afford natural justice (grounds 1, 2 and 18); and failure to evaluate and deal with every issue of significance raised (grounds 6, 7, 13 and 21); and legal unreasonableness (grounds 1, 4 and 19). I will proceed by setting out each ground raised by the tenants by reference to the Tribunal’s decision as a heading and then provide reasons for my decisions.
The landlord’s proposed cross appeal also raises grounds of procedural fairness and legal unreasonableness, together with a challenge to the Tribunal’s findings that the tenancy agreement in relation to Lot 67 did not comply with s 19(1)(d) of the RTA, and that the Lot 22 tenancy agreement was not terminated. The landlord seeks remission in relation to its appeal grounds relating to compensation and declarations as to the status of the tenancy agreements for Lots 22 and 67.
Some of the tenants’ grounds of appeal raise very general complaints which are said in submissions to be supported by “examples” from the evidence and submissions in relation to particular points. In most cases, the so-called examples are actually particular decisions in the proceeding which turn on their own facts. It is not possible to make any general findings as to error based on examples. In addition, on an appeal it is for the appellant to point to an error and the basis for it. It is not the role of an appeal court to search for error. I will proceed to deal with each ground raised by the tenants by reference to the particular decision, evidence and matters relied upon by the tenants (or where relevant the landlord) in relation to each proposed ground of appeal.
An appeal from the Tribunal to this Court is governed by s 141 of the NTCAT Act and is limited to a question of law. The principles relevant to an appeal on a question of law are set out in Booth v An Assessor.[7] Leave to appeal is required. Leave should be granted only if it is in the interests of justice to do so in all the circumstances of the case. In making that assessment the court will consider whether there is sufficient doubt about the question of law to justify the grant of leave and whether a substantial injustice would result if the error is not corrected.[8] An error of law identified must be one which could vitiate the Tribunal’s decision; that is there must be a real possibility that the error could (but not would) have affected the Tribunal’s decision.[9]
The applications for leave to appeal rely upon the merits of each of the proposed grounds of appeal, which were fully argued. The landlord’s position was that leave to appeal should be refused on all but ground 15.
As I explain in these reasons, leave to appeal on grounds 15 and 16, and cross appeal ground 3, is granted and the appeal upheld. The notice of contention is upheld. Leave to appeal is not granted in relation to proposed grounds 2B, 3, 5A, 7, 11, 13, 19, 20, 21, and cross appeal grounds 1 and 2. Leave to appeal is granted, but the appeal dismissed in relation to grounds 1, 2A, 4, 5, 6, 8, 9, 10, 12, 14, 17 and 18. It was unnecessary to determine cross appeal ground 4.
Ground 1: The Tribunal acted in breach of s 53 of the NTCAT Act by failing to comply with the rules of natural justice and/or failed in its statutory task by failing to deal with submissions made to it on behalf of the Appellants concerning how to approach the witnesses and documents put before the Tribunal by the Landlord.
The tenants argued that the Tribunal failed to comply with the rules of natural justice, as required by s 53 of the NTCAT Act, in that it failed to consider the tenants’ submissions about the weight that should be given to certain witness statements, the weight that should be given to the absence of other witness statements and the specific reasons that some of the landlord’s witnesses should not be preferred in relation to certain points of fact.[10] In oral argument, counsel for the tenants referred to the tenants’ written closing submissions before the Tribunal at paragraphs [18] – [21], [26] and [27],[11] together with the oral submissions to the Tribunal on the same issues on 3 August 2022.[12]
The landlord argued that the tenants’ complaint relates only to the evaluation of evidence by the Tribunal and is posed at such a high level of generality that it is not possible to identify how a particular error of law could have resulted in a different outcome in relation to any of the tenants’ claims. The landlord further argued that, in any event, the Tribunal did consider the submissions of the tenants as it was required to do, that there was in the circumstances no legal requirement that the Tribunal address every point of detail raised by the tenants in their oral and written submissions, and that the submissions were in any event without merit.
The tenants’ argument relied upon the decision of the High Court in Plaintiff M1/2021 v Minister for Home Affairs.[13] That case concerned a person whose visa had been cancelled on character grounds. He made representations to an administrative decision maker in support of an application for revocation of the cancellation decision which included reliance upon Australia’s international non-refoulment obligations. The decision maker who rejected the application considered the plaintiff’s representations, including those relating to refoulment, but declined to revoke the visa cancellation, reasoning that the plaintiff had a separate right to apply for a protection visa and refoulment would be considered in the course of that application.
The majority in the High Court held that there was no jurisdictional error, or denial of natural justice by the decision maker.[14] In a joint judgment, Kiefel CJ, Keane, Gordon and Steward JJ, said that “a decision-maker must read, identify, understand and evaluate the representations”.[15] The plurality then went on to say:[16]
It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement – the degree of effort needed by the decision-maker – will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.
As the High Court’s decision in Plaintiff M1/2021 makes clear, in reference to the statutory process under consideration there, the question of how a decision maker is required to take a submission into account depends upon the circumstances. The decisions which are the subject of complaint in this ground were not made by an administrative decision maker, as in Plaintiff M1/2021, but by the Tribunal exercising its quasi-judicial powers. An allegation that a body such as the Tribunal has denied a party procedural fairness is a significant matter. It must be considered in the context of the Tribunal’s function and governing statute.
Counsel for the tenants strenuously argued that this ground of appeal was not based on an assertion that the Tribunal gave inadequate reasons but upon an alleged failure by the Tribunal to take the tenants’ submissions into account, which he said amounted to a denial of natural justice in the sense described in Plaintiff M1/2021. Notwithstanding that, it remains the case that provision of adequate reasons is essential in order for an appeal court to carry out its function.[17] It is only possible to determine what the Tribunal took into account by reference to the reasons given.
The Tribunal addressed each individual claim for breach of the tenancy agreements resulting from the “repair” items as set out in the 2019 and 2022 Repair Tables and made separate findings for each claim.[18] Those findings are largely findings of fact, although some are mixed fact and law. The reasons for each individual decision on the separate breach allegations are, as is appropriate given the nature of the proceeding, often brief. However, the reasons must be read as a whole.
In order to properly assess the tenants’ argument it is necessary to consider what the tenants’ submissions were, and how they related to the matters which the Tribunal was called upon to decide. The tenants bore the onus of proof on each allegation of breach. At first instance the tenants sought to undermine the evidence given on behalf of the landlord in order to convince the Tribunal to accept their evidence. In closing arguments, both oral and written, counsel for the tenants urged the Tribunal to accept the evidence of the tenants in preference to the evidence of witnesses called for the landlord,[19] and by extension the documentary evidence produced by the landlord, on a number of bases which were directed to the credibility, and reliability.
The tenants argued before the Tribunal that:
i)Donna Roman (an employee of the landlord, acknowledged as an “on the ground” witness) gave unreliable evidence because her memory of the particular premises was poor, and her record-keeping was “cursory” and included a lot of errors;
ii) Various other witnesses called by the landlord were “bureaucrats” from “air-conditioned offices” in Alice Springs and Darwin and did not really know what was happening with the tenancies and therefore their evidence was not reliable;
iii)There were a lot of errors in the documentary records kept by the landlord and therefore those documents could not be relied upon where they contradicted the tenants’ sworn evidence;
iv)The landlord failed to call “on the ground” staff, such as housing maintenance officers, or contractors about what occurred with each repair item founding an alleged breach by the landlord, without explanation, and therefore an inference should be drawn that those potential witnesses would not have assisted the landlord’s case.[20] That inference was relied upon to argue that the Tribunal should find that the tenants’ version of events should be accepted.
There are two points to note about the tenants’ closing submissions in relation to the landlord’s evidence. First, the submission as to credibility was general, although some examples were given, and did not address the evidence relevant to each of the particular factual findings which the Tribunal was required to make in relation to each of the many alleged breaches. Second, the tenants also relied upon the documentary evidence, and to an extent the oral evidence, called by the landlord. Reliance upon the documentary evidence is referred to both in the tenants’ closing submissions,[21] and extensively throughout their 2019 and 2022 tables of repairs.[22]
The way in which the evidence was to be used is also relevant. The tenants stated in their closing submissions to the Tribunal, in the section which is said to have been ignored, that Donna Roman’s evidence was relevant only to issues 11, 12 and 13 in the “agreed list of issues”;[23] Amanda Kuhn’s evidence to issues 2, 14, 15 and 16, primarily as they related to the applications concerning Lot 63; and Charlene Mibus’ evidence to issues 15 and 16, primarily as they related to the applications concerning Lot 67.
Issue 11 in the list of issues was about whether the absence of a shower curtain or screen made each of the premises not habitable in breach of the term of the tenancy agreement implied by operation of s 48(1)(a) of the RTA. It is dealt with in paragraphs [110] to [124] of the Tribunal’s decision.[24] That issue was resolved by the Tribunal largely upon legal grounds and on the basis that there was no shower screen or curtain in place in any of the houses. In so far as Donna Roman may have given incorrect evidence about the presence or absence of shower screens, it was therefore irrelevant to the decision. There was no need for the Tribunal to refer to Donna Roman’s evidence in relation to issue 11 because the absence of shower curtains or screens, if ever in dispute, was accepted by the Tribunal.
Issues 12 and 13 refer to the tables of repairs annexed to the agreed list of issues (and, in amended form, the tenants’ closing submissions).[25] The question asked in issue 12 was whether the landlord’s conduct in relation to each item set out in the tables resulted in a conclusion that it was in breach of the obligation under the tenancy agreement to take reasonable steps to provide and maintain reasonable security (implied by s 49 RTA) or, as relevant, whether the landlord was in breach of the habitability condition implied by s 48(1)(a) of the RTA.
Issue 13 was put in the alternative to issues 11 and 12. It asked for each of the items in the tables of repairs (including the shower screen/curtain referred to in issue 11), where there had not been a breach of the landlord’s obligation to provide habitability or security, whether there had instead been a breach of the landlord’s obligation to repair in s 57(1) of the RTA. This issue required consideration of related questions as to notification and reasonable diligence in conducting repairs.
The factual decisions which were required to be made pursuant to issues 12 and 13 are dealt with at paragraph [125] of the Tribunal’s reasons[26] and in separate sections of the decision under the headings “The 2019 Table of Repairs” appearing between paragraphs [164] and [168],[27] and “The 2022 Table of Repairs” appearing between paragraphs [230] and [231].[28] Consideration of these matters formed the bulk of the questions the Tribunal was required to decide, including the majority of the factual findings. At [125] of the reasons the Tribunal exposed its methodology as follows:
Issues number 12 and 13 have been addressed by the parties by way of tables of repairs based on the Annexure to the agreed list of issues. Those tables helpfully set out each item of repair; purported dates of notification; the section of the Act said to be breached; and purported dates of repair. The parties include in the tables reference to evidence upon which they rely. Issues number 12 and 13 require a consideration of each alleged item of repair and whether or not a breach is established under section 48(1), 49 or 57(1) of the Act.
Although issue 13 refers to a repair claim pursuant to s 57(1)[29] applying as an alternative to every claim initially founded upon either s 48 or s 49, the tenants refined their position in closing submissions to specify which section of the RTA they alleged to have been breached with respect to each alleged repair item. In some cases, the tenants ultimately relied only on a failure to diligently repair in breach of s 57(1). In others they continued to rely upon that section as an alternative to either an alleged breach of the landlord’s obligation for habitability (s 48(1)(a)) or security (s 49(1)).
The repair tables attached to the tenants’ closing submissions included a table headed “source and references” which included detailed references to documents in the exhibit book filed in the Tribunal proceeding.[30] As part of its written closing submissions the landlord filed a table which set out a detailed summary of its position, including by reference to the evidence relevant to each of the repair items. In submissions in reply the tenants addressed the treatment of the evidence suggested in the landlord’s table, including some specific matters which were raised by the landlord in relation to individual repair items.[31]
The submissions which the tenants say the Tribunal failed to consider[32] in the process of weighing evidence and making findings must be seen in the context of the whole of the submissions made by the parties. The submissions said to be ignored were directed to the credibility of the landlord’s evidence and/or its weight. The competing evidence was that of the tenants. Further, while impressions and interpretations may have varied and affected the weight given to aspects of the evidence, there were relatively few clear factual disputes. The Tribunal was often faced with a lack of evidence, rather than a need to resolve conflicting versions of events.
In the tenants’ closing submissions to the Tribunal they conceded that the oral evidence of Mr Jack should be “approached with caution” due to his limited command of English and the considerable difficulties with his memory.[33] Similar, but less pronounced, difficulties were conceded with respect to the evidence of Mr Stafford, and it was also submitted that lack of memory, given that three years had elapsed since the unattested declarations were made, was relevant to the evidence of Ms Pepperill and Mr Brown.[34] In the same submissions the tenants argued that the Tribunal should accept the evidence set out in the tenants’ unattested declarations where it differed from their sworn evidence. Those closing submissions to the Tribunal do not sit well with the tenants’ argument on this appeal that the Tribunal should have accepted the tenants’ sworn evidence in preference to documents authored by Ms Roman.[35]
The evidence of the tenants and of the landlord relevant to issues 12 and 13, in particular 13, diverged on the question of when notice of the need for the repair of various items in the houses was given. Whether notice was given, and its timing was, as the Tribunal noted at [152] of the reasons, a critical fact to be determined in relation to many of the claims. The Tribunal also noted that the tenants relied “substantially if not entirely” on the unattested declarations. That is consistent with the tenants’ closing submissions to the Tribunal referred to above. It strongly suggests that those submissions were considered. In addition, the Tribunal reasons closely examined the evidence of Mr Jack, Ms Pepperill and Mr Brown and explained, by reference to passages of evidence, including from the transcript, why their evidence was not found to be reliable.[36]
The Tribunal President also explained why he did not find the unattested declarations reliable. This was a matter upon which both parties had made submissions. The Tribunal’s comments as to the process involved in obtaining the unattested declarations including that they were made without the assistance of interpreters should be read in the context of the detailed findings as to unreliability of the various witnesses’ evidence overall, and bearing in mind that the Tribunal member had the advantage of seeing and hearing each of the witnesses give evidence.
Having explained its reasons, the Tribunal found that the evidence of the tenants as to dates of notification was unreliable and that it preferred the documentary evidence from the landlord because, as the President said, those documents “enable me to identify with precision, points by which the respondent had certainly been notified”. The Tribunal found that, in the absence of reliable evidence from the tenants, where there were documents recording an issue, it would rely upon that evidence to find that there was notification from at least that point. The Tribunal was entitled to make that finding. The Tribunal, having explained in some detail why it did not generally accept the tenants’ evidence of notification based on an assessment of the evidence, then went on to assess each claim set out in the tables of repairs as I have described above. Those reasons are to be read in the light of the evidentiary findings which precede them.
The tenants’ submissions in this Court focused upon the Tribunal’s evaluation of the evidence of Donna Roman with respect to 2019 Repair Table Lot 22 item (e). The argument that the tenants’ submissions on that topic were ignored must be rejected. Lot 22 item (e) alleged a breach of the tenancy agreement by the landlord on the basis that the landlord had failed to diligently repair a broken light and fitting in the kitchen of Mr Jack’s house which, he said, had first been reported as needing repair around the middle of 2018. The Tribunal reasons recite the claim and the evidence and refer to the landlord’s inspection records. Those inspection records were prepared by Ms Roman and signed by Mr Jack. They each state that the light cover is missing. However, the Tribunal did not rely only on Ms Roman’s records. The Tribunal referred to a job card completed by maintenance staff on 21 August 2019 to the effect that there were no covers available to replace the broken one but that the light “still works”. That was, along with earlier findings as to the unreliability of the evidence of Mr Jack, the primary basis of the Tribunal’s finding that the light fitting became damaged sometime after 21 August 2019 and not in mid-2018 as asserted by Mr Jack.
In oral submissions, counsel for the tenants also referred to a “condition report” at exhibit book 3 page 4930 as a document which the Tribunal specifically used to reject the evidence of Mr Jack on the basis that there cannot have been consideration of the tenants’ submissions that Ms Peckett, the apparent author of that document, was not called and the Tribunal should draw an inference from that, that her evidence would not have assisted the landlord’s case. The document at EB 3 4930[37] appears to be a rental rebate and continued eligibility form, not a condition report. It appears to be dated 11 September 2019. Counsel for the tenants noted that the document referred to Mr Jack not having a disability, by completing a check box to that effect, a statement which was clearly incorrect. However, I do not accept the submission of the tenants that this document was used by the Tribunal to reject the evidence of Mr Jack. The Tribunal’s basis for the rejection of Mr Jack’s evidence where it was not corroborated was that it was unreliable for the reasons the Tribunal gave.
Issue 14 before the Tribunal was a question about whether the Limitation Act 1981 (NT) (Limitation Act) applied to various repair items, largely claimed in the 2022 applications. This was primarily a legal issue, understood to be really about whether there should be an extension of time in accordance with s 44 of the Limitation Act. Discovery of the terms of the tenancy agreement was relied upon as the “material fact” for the purposes of the extension of time application.[38] The relevant factual question was whether the tenants of Lots 63 and/or 67 were given a copy of their tenancy agreement at or around the time they entered into the tenancy. This was addressed in the evidence of landlord employees Amanda Khun, and Charlene Mibus, respectively. The Tribunal was not satisfied that, based on their evidence as to the usual practice, copies of the tenancy agreements were not given to the tenants at the time of signing the lease. The Tribunal reasons include a detailed assessment of the evidence in relation to this issue at [175] to [183].[39] The alleged material fact was therefore not proven. In addition, the Tribunal held that even if the tenants were not provided with copies of their leases that was not a material fact for the purpose of an extension of time and, further, that time should not be extended in any event, in the exercise of the discretion, due to prejudice to the landlord.[40]
Issues 15 and 16 in the list of issues related to the rent due under the leases and whether there was any obligation for the landlord to compensate the tenants for overpayment of rent. The question is dealt with at [187] – [200] of the Tribunal reasons.[41] Again there was a clear engagement with the evidence and the tenants’ submissions. As to the issue of whether a person was “adequately housed” the Tribunal resolved that whether particular officers turned their mind to that question was irrelevant to that decision.[42]
Failure of a body such as the Tribunal to weigh and consider evidence and to explain, where necessary, a preference for a particular piece of contradictory evidence over another on a relevant question, taking into account a parties’ submissions, may point to an error of law.[43] However, in this case, there was no such failure by the Tribunal. The Tribunal appropriately considered the evidence and the submissions of the tenants. It was not necessary for the Tribunal to take up every point made. The tenants were not denied natural justice.
Leave to appeal is granted, and the appeal is dismissed.
Ground 2A: The Tribunal acted in breach of s 53 of the NTCAT Act by failing to comply with the rules of natural justice and/or failing to act fairly when it made findings that tenants breached provisions of the Act without:
i. Any such breach being an issue agreed between the parties; and/or
ii. Any such breach being raised by the landlord; and/or
iii. Any question of the breaches found being put to the relevant tenants; and/or
iv. The tenants’ lawyers being forewarned that those issues would be introduced and then provided with an opportunity to address them.
This ground shares a procedural factual background with ground 19, but raises a different legal issue.[44] Although the ground of appeal refers to unspecified breaches of the RTA (meaning the implied terms of the tenancy agreement) the substance of the complaint is that the Tribunal, having set a procedure by which the parties were required to compile a list of issues for determination which was agreed by 26 August 2020, allowed the landlord to raise additional issues, particularly pursuant to the terms of the tenancy agreement implied pursuant to ss 48(2), 51 and 55 of the RTA in a manner which was unfair and/or did not comply with the rules of natural justice. Although there are four sub-grounds, those should more properly be seen as particulars. They all raise aspects of the same complaint.
The tenants relied, as evidence of unfairness, upon alleged unequal treatment based on the refusal of the Tribunal to allow additional allegations of breaches of the tenancy agreement by the landlord to be added in May and July 2021, compared with the Tribunal’s acceptance for determination of the allegations on behalf of the landlord referred to above. The procedural history of that dispute is relevant to ground 19 and is discussed there. The fact that the tenants were not given leave to amend to add new claims is not relevant to the issue raised in this ground.
The first question arising is whether the Tribunal should, given the list of agreed issues for determination set out at [18] of its reasons, have considered s 48(2) when determining whether the landlord had breached its obligations under the tenancy agreement to ensure premises were habitable in the various ways alleged by the tenants. Section 48 of the RTA is in these terms:
48 Premises to be clean and suitable for habitation
(1)It is a term of a tenancy agreement that the landlord must ensure that the premises and ancillary property to which the agreement relates:
(a)are habitable;
(b)meet all health and safety requirements specified under an Act that apply to residential premises or the ancillary property; and
(c)are reasonably clean when the tenant enters into occupation of the premises.
(2)It is not a breach of the term specified in subsection (1) if the failure to comply with the term is caused by:
(a)an act or omission of the tenant; or
(b)the tenant’s failure to notify the landlord of repairs required to the premises.
A plain reading of the provision shows that s 48(2) is integral to the question of whether a landlord has breached the obligation in s 48(1)(a), where it arises on the facts. The tenants say that they were taken by surprise by the landlord’s reliance upon it in this case. That submission is made notwithstanding that the responses filed by the landlord in November 2019 squarely put the tenants’ conduct, as relevant to s 48(2), in issue.[45]
The tenants’ argument proceeds on the basis that the list of issues prepared in August 2020 does not specifically refer to s 48(2). In their opening submissions for trial filed 21 May 2021 the tenants said:
The landlord has not put s 48(2) in issue (namely, by the agreed list of issues). As such, this is not of concern in these proceedings other than as context for understanding why compensation must be owed from the time each habitability or ‘health and safety’ issue arose.[46]
This statement was expressly refuted in the landlord’s submissions filed on 28 May 2021. The landlord said:
The contractual term implied under s 48(1) is not breached if the failure is caused by an act or omission of the tenant, or the tenant’s failure to notify of repairs (s 48(2)). For the avoidance of any doubt (AOS [35]), s 48(2) is in issue in these proceedings. It is within the scope of issue 12(b) in the SAI. The CEOH will address on its application after the evidence. Section 48(2) provides in respect of s 48(1) a necessary balancing of rights and duties.[47]
There is therefore no doubt that, having received the landlord’s submissions, the tenants were on notice from late May 2021 as to the nature of its case, even if they had been lulled into a false sense of security earlier due to the wording of the agreed list of issues.
After several delays the Tribunal hearing commenced on 25 July 2022, over a year after the landlord’s submissions had been received by the tenants. There is no evidence that the tenants took any procedural steps to clarify the issue in the meantime.
At the Tribunal hearing, objection was taken by the tenants, on the ground of relevance, when the landlord’s counsel sought to cross-examine Mr Jack about damage to the shower head in his bathroom on the basis that the causation on the part of the tenants was not in issue.[48] That objection was taken notwithstanding that Mr Jack had stated in his unattested declaration, dated 10 December 2019, that he had not caused any of the problems in his house.[49] In the course of argument on that point before the Tribunal, counsel for the tenants submitted that:
Because if the question of cause was an issue in this trial then it needed to be on the list of issues. We raised exactly this question in our written submissions of more than a year ago, saying that the list of issues, …[has] no reference at all to s 48(2).[50]
The position of counsel for the tenants in argument on this point before the Tribunal, was that the issue of breach under s 48(1)(a) and the question of “defences” pursuant to s 48(2) were different issues. The tenants also argued that it was unfair that the landlord could rely upon s 48(2) given the Tribunal’s refusal to “amend” the list of issues to add additional claims.[51] Counsel for the tenants then said that he was not prepared to argue s 48(2) and that it was for the landlord to seek to add it as an issue.
After hearing from counsel for the landlord the President ruled that evidence relating to causation, as relevant to s 48(2), fell within the matters he needed to consider in determining whether the landlord was in breach of the tenancy agreement, and would be admitted. Counsel for the tenants did not seek an adjournment.
At the conclusion of the hearing, the question was dealt with in submissions by both parties. Counsel for the tenants submitted that they had not had the opportunity to respond to the s 48(2) issue by obtaining evidence from non-tenants who could say how and, if relevant, by whom, particular damage occurred.[52] The tenants’ written submissions of 19 August 2022 also dealt comprehensively with their argument as to s 48(2), both procedurally and substantively.[53] Further submissions on that topic were also made by the tenants in reply to the landlord’s submissions to the Tribunal.[54]
In the tenants’ written submissions to the Tribunal of 19 August 2022, and in submissions in this Court, counsel for the tenants said that they would have been able to obtain evidence from Mr Gilbert Wako (son of Mr Jack and a person said to have knowledge of how damage occurred in Mr Jack’s house) but could not do so because he was in gaol at the time that the hearing at Laramba took place.[55] The first two days of the Tribunal hearing were conducted at Laramba and then the evidence resumed in Alice Springs on the third to fifth days. Facilities for giving evidence via audio visual link would have been available in Alice Springs. It is common for people in custody to give evidence in courts, including in civil matters, via audio visual link. There was no evidence, or submission (based upon the transcript), that any attempt had been made to visit the gaol to take a statement from Mr Wako, or to have him give evidence in relation to the s 48(2) issues. The tenants did not suggest that there were any other relevant witnesses who could have been called.
The Tribunal dealt with this issue at [127] – [144] of the reasons.[56] At [132] the President correctly identified that the earlier (2021) application to add items of repair to the proceeding was not concerned with expanding the list of issues but rather was an attempt to amend to add new claims for “repair items”. Each of the new repair items carried with it a separate specific allegation of breach of the tenancy agreement by failure by the landlord to diligently repair and/or to provide premises which were habitable or secure. Therefore, each individual “repair item” involved a separate cause of action, namely a breach of the tenancy agreement, for which the tenants sought statutory compensation.
After giving reasons for his decision refusing the tenants’ 2021 application to amend, the President then went on to explain why the “good for the goose, good for the gander” approach urged by the tenants was misconceived, pointing out the substantial difference between the tenants’ application to add new causes of action and consideration of the law relating to the existing claims. In doing so the President engaged directly with the tenants’ submissions on the topic and concluded that, in relation to issue 12, the assessment of whether the landlord was in breach of the tenancy agreement necessarily involved consideration of all aspects of the term implied by s 48, namely the provisions of both s 48(1) and (2).
From a procedural point of view, the status of the list of issues agreed by the parties in August 2020 is unclear. I do not think that it was akin to a pleading. However, even if it was, and if, despite the landlord having raised the matter in the original responses in November 2019, there was any confusion as to the landlord’s case in reliance on s 48(2) after August 2020, the tenants were clearly on notice as to the issue from 28 May 2021. The tenants gave evidence and were cross-examined as to the cause of various items of disrepair or damage to their houses at the hearing in late July 2022. They also gave evidence as to associated issues such as notification of the need for repair of particular items to the landlord. There was no evidence of any attempt by the tenants to call additional evidence as to who caused the damage to particular parts of the houses. Had such evidence been available, it was a matter which might have been addressed via an adjournment, but none was sought.
The tenants also complain that the list of issues did not include any reference to determination of issues raised by reference to ss 51 and 55 of the RTA. Section 51(1)(a) of the RTA makes it a term of a tenancy agreement that a tenant will not maintain premises in an “unreasonably dirty condition”, allowing for fair wear and tear. A tenant is required to notify the landlord of damage or apparent or potential damage to the premises. Section 51(1)(c) provides that a tenant must not intentionally or negligently cause or permit damage to the premises or ancillary property. However, s 51(3) states that a tenant is not in breach of their obligations in that regard if the breach is caused by the landlord’s failure to repair or maintain the property and the landlord had notice that repair or maintenance was required.
Section 55(1) implies a term into a tenancy agreement that a tenant must not make an alteration or addition to premises, unless the landlord has provided written consent or the alteration or addition is authorised or required by law. Section 55(3) provides that if a tenant causes damage by removing or installing a fixture the tenant must notify the landlord and, at the option of the landlord, have the damage repaired or compensate the landlord for the reasonable cost of the repair. There is an exception in s 55A for urgent safety or security modifications.
The landlord argued in its opening submissions to the Tribunal on 28 May 2021[57] that the obligation not to make alterations to the property was relevant to the evaluation of the tenants’ claims for breach of the security obligation implied pursuant to s 49, and also to claims for breach of the landlord’s obligation to repair implied by s 57(1), in relation to the “Lot 67 window claims”.
When counsel for the landlord cross-examined Mr Brown (tenant of Lot 67) at the hearing about the cause of damage to the doors of his house, counsel for the tenants objected on the basis of relevance because “there has been no allegation, at any point, that our clients have breached s 51 of the Act”.[58] Counsel went on to say that the tenants were facing the allegation for the first time and it was a “new case” by the landlord. The President, after hearing argument from counsel for the landlord allowed the cross-examination to continue.
The Tribunal was clearly aware of the need to consider the balance of responsibilities between a landlord and tenant when determining whether the landlord was in breach of the tenancy agreement.[59] At [32] of the decision the President wrote:
The large number of duties imposed on a tenant going to repairs, maintenance and use of the premises reflects the practical reality that it is a tenant who is in possession and day to day control of the premises. Broadly, a landlord must lease premises that are habitable, safe and clean; and reasonably maintain them. In return a tenant is obliged to take care of the premises by keeping them clean and free of damage; and by letting the landlord know of damage other than negligible damage.
He then went on to consider the competing responsibilities enshrined in the scheme of the RTA in some detail.[60] This part of the reasons must also be read in conjunction with the sections dealing with the individual claims for breach.
The Tribunal decisions complained of by the tenants relate to 2019 Repair Table Lot 22 item (f) and (k) which were allegations of cockroach infestations in the kitchen and bathroom, respectively; Lot 63 items (k), (o) and (p) which concerned lack of a stove, a broken bathroom faucet and missing toilet lid; and Lot 67 items (c), (k) and (w) which were failure to seal around the air conditioner in bedroom 1, grill section of oven not working and spider infestation in the bathroom.
In relation to Lot 63 item (p) the Tribunal found that there was a breach by the landlord of the s 57(1) obligation to diligently repair, although the damage was caused by the tenant. A breach of the s 57(1) obligation was also found in relation to Lot 67 item (k). All other claims were dismissed.
The Tribunal weighed the evidence and considered the circumstances as a whole, including the actions of the tenants, in deciding in relation to each “repair item” whether the tenants had established that the landlord was in breach of its obligations as alleged. It would be entirely artificial, and contrary to the purpose of the RTA, to determine whether one party has breached a tenancy agreement by considering the actions of that party in a vacuum, that is without consideration of all of the circumstances. There may of course be situations where, on the facts, the actions of the party alleged to be in breach will be the main, possibly the sole, focus.
It cannot be the case that in determining whether a party is in breach of a tenancy agreement, the factual basis for a claim, including who was responsible for the state of affairs said to be a breach, cannot be relevant. Such an inquiry must include the relevant conduct of both parties. Relevant matters may or may not amount to a separate breach of the tenancy agreement (in this case by the tenants), but that is not the purpose of the inquiry.
I do not accept that the tenants were denied natural justice because they were not aware that their conduct would be called into question in relation to the cause of damage for which they were seeking compensation. It is not a matter of the landlord setting up a case against the tenants for breach of any implied term of the lease and “setting off” one breach against another. The landlord made no claim for compensation for any breach by the tenants. Nor was it necessary for the landlord to prove a positive claim for breach of another implied term of the tenancy agreement in order to defend the tenants’ claims by calling their conduct into question.
In my view it is clear that the tenants were aware that their conduct as tenants would be relevant in these proceedings well in advance of the Tribunal hearing. The issue had been live since the beginning of the proceedings and was made very clear in the landlord’s submissions of 28 May 2021.[61] The Tribunal was entitled and in my view obliged, to take all of the evidence into account, including evidence as to the tenants’ conduct where relevant to the questions in the proceeding.
A separate complaint is made about the Tribunal’s decision in relation to issue 10, which was the only claim for urgent repairs pursuant to s 63 of the RTA which remained outstanding at the time of the Tribunal hearing. The claim was for repair of the split system air conditioner in the lounge of Lot 67. The Tribunal dismissed the application. The tenants’ complaint about that decision under this ground is that the only basis upon which the Tribunal could have found against the tenants was s 63(1)(b), namely that the premises were in a state of disrepair arising from the contravention of the tenancy agreement by the tenant.
In my view the “state of disrepair” referred to in s 63(1)(b) refers to the repairs said to be required. It does not refer to the premises generally. Any other construction would be unreasonable because it would be unfair. The tenants argue that because s 63(1)(b) was not mentioned in the list of issues the tenants did not have the opportunity to address the Tribunal on the provision and, in addition, did not submit that the installation of the air conditioner was an act of mitigation due to the landlord failing to provide a habitable dwelling during the summer months.
The contest before the Tribunal appears to have been whether the air conditioner was part of the premises required to be maintained by the landlord. This centred on evidence about who installed it. The landlord’s evidence was that it did not. The tenants gave no evidence about when the air conditioner was installed.[62]
The Tribunal noted at [107] of the reasons that an order for emergency repairs cannot be made where there was a contravention of the tenancy agreement. It is not controversial that installation of a fixture without the consent of the landlord may be a contravention of the agreement. That statement needs to be seen in the context of the reasons on this topic overall and the case of the tenants at trial, which was that they did not install the air conditioner.[63]
However, the primary basis of the Tribunal’s decision to refuse the order for emergency repairs was the finding, at reasons [108] - [109], that there was no evidence regarding any “fault, failure, breakdown or damage needing repair”. That passage is a reference to the definition of “emergency repairs” at s 63(2) of the Act, noting that the tenants relied upon s 63(2)(m) arguing that the problem with the air conditioner was a “fault” within the meaning of that section.[64] That finding, of mixed fact and law, was fatal to the tenants’ claim.
The tenants were not denied natural justice. The question of any breach of the tenancy agreement by the tenants was considered only in the context of evaluating the tenants’ conduct as relevant and to the questions the Tribunal was required to decide. The conduct of the tenants was relevant on the facts and the tenants were on notice and were given sufficient opportunity to address those factual matters.
Leave to appeal on this ground is granted, and the appeal is dismissed.
Ground 2B: The Tribunal acted in breach of s 53 of the NTCAT Act by failing to comply with the rules of natural justice and/or failing to act fairly when it failed to consider or apply the maxim from Blatch v Archer or deal with submissions on the principle from Jones v Dunkel in respect of the authors of documentary evidence produced to the Tribunal by, and completed on behalf of, the Landlord.
The tenants’ complaint is that the Tribunal erred in giving undue weight to documentary evidence relied on by the landlord as to the state of the houses at various times in circumstances where the authors of those documents did not give evidence. The nub of the complaint is that the statements in the documents could not be tested because the authors were not cross-examined.[65] Although the complaint is made generally, the tenants made references to this ground affecting the Tribunal’s decisions relating to 2019 Repair Table Lot 22 items (f), (j) and (k) and Lot 63 item (k).[66] Those items concern the infestation of cockroaches in the kitchen and bathroom and missing toilet flush button at Lot 22 and the lack of an oven or stove at Lot 63.
The tenants assert that the Tribunal failed, in breach of s 53 of the NTCAT Act, to act fairly and according to the substantial merits of the matter and failed to afford them natural justice because it failed to weigh the evidence according to the proof which it was in the power of one side to produce and the other to contradict.[67] The tenants rely in particular on the principle in
Jones v Dunkel[68] as discussed in Ho v Powell.[69] Ho v Powell was a claim for personal injury arising from a road traffic accident in which the defendant had admitted liability but relied upon contributory negligence on the basis, among other things, that the plaintiff had no front light on his bicycle. The defendant, Mr Ho, was present at the hearing but was not called to give evidence. There was no explanation for that failure. The trial judge inferred that his evidence would not have helped the defendant’s case in relation to contributory negligence, an issue on which the defendant bore the onus of proof. The defendant appealed. By majority, the New South Wales Court of Appeal held that the trial judge was entitled to take into account that the defendant did not give evidence in coming to her decision that the defendant had not proven that the plaintiff’s negligence contributed to the accident.
As Mildren J said in Shelton v Oaktech Pty Ltd[70] the principle in Ho v Powell relates to a situation where a party is not called to give evidence and where that party bears the onus of proof. The legal burden of proof in relation to each alleged breach of the tenancy agreement by the landlord was on the tenant. That is the case although there was at various times an evidential burden upon the landlord, for example as to whether a failure to ensure habitability was caused by an act of the tenant, or a tenant’s failure to notify, in accordance with s 48(2).
The tenant complains that the Tribunal relied upon inspection reports and pest control invoices to show that the cockroach infestation in the kitchen of Lot 22 was caused by him, although he had given evidence, in his unattested declaration, that he did not cause the problem. However, as discussed in relation to the related issue in ground 1, above, the Tribunal did not approach the evidence in this way.
Although Mr Jack stated, in his unattested declaration, that he did not cause any of the problems in his house, his oral evidence on the cockroach issue was not to the same effect. When he was cross-examined Mr Jack was asked about cleaning in the house and agreed that he found it difficult to do that due to his disability.[71] Later, he was asked specifically about cockroaches in the kitchen. He said he had tried to use a cockroach kit and also boiling water to get rid of them. At the end of this portion of the cross-examination it was put to Mr Jack that the reason he had cockroaches in his house was that it was because it was dirty and there was food for them to eat. His reply, through the interpreter, was “Yeah. So he knows that”.[72]
The result is, contrary to the submission of the tenant, that there was evidence upon which the Tribunal was entitled to rely in addition to the landlord’s records in determining whether the cockroach infestation was caused by the actions of Mr Jack. The Tribunal made findings of fact based upon the evidence before it, which included the evidence of the tenants, the extensive business records of the landlord, and the opportunity which the President had to inspect each of the houses for himself during the hearing at Laramba.
The complaint as to the decision regarding the lack of a toilet flush button Lot 22, item (j), was made in oral submissions. This was an alleged breach by the landlord by failing to diligently repair the toilet. The issue at the hearing before the Tribunal was the date of notification. Mr Jack’s evidence in his unattested declaration that he had told the landlord about the problems in mid-2018 was rejected by the Tribunal for the reasons discussed above in relation to ground 1. The tenant bore the onus in relation to the question of notification in relation to this breach.
The final decision complained of was in relation to Lot 63, item (k), which concerned the lack of a stove or oven at Lot 63 for various periods between (relevantly) 13 May 2016 and 31 October 2019. The tenants claimed that the landlord had failed to ensure habitability as a result of the oven/stove not working, however the Tribunal found that the appliance did not work at various times because the tenants had not appropriately maintained it and had, at one stage, removed it from the house. The Tribunal took into account the steps taken by the landlord, which included provision of three new appliances in the period 2012 to 2019. The Tribunal held that the landlord was not in breach of the tenancy agreement because the lack of an oven/stove was caused by the acts or omissions of the tenants.
As with the other decisions complained of under this ground, the Tribunal relied upon the evidence of the tenants, which is quoted in the Tribunal reasons,[73] as well as the documentary evidence provided by the landlord. The tenants’ argument in relation to this and the other two decisions complained of is that the Tribunal acted upon the documentary evidence in particular without the authors of those reports being called. The tenants argue that an inference must be drawn that the evidence of those people would not have assisted the landlord’s case because the authors did not provide declarations to the Tribunal and “were not made available for cross-examination”.
That submission ignores the fact that there was other evidence upon which the Tribunal could act. Because there was evidence on the issue on which the Tribunal could rely, no basis for a Jones v Dunkel inference was established. The evidence included but was not limited to the documentary evidence, which were business records of the landlord which were in evidence before the Tribunal.
The tenants also complain that the authors of condition reports, named as Cheryl Peckett and Trevor Neill were not called to give evidence and there was no opportunity to cross-examine them. The denial of natural justice is said to be that the reports of those people were used to discredit Mr Jack in relation to his own house.
However, the issues which were said to be caused by the tenants, in particular as to dirtiness, cockroach, and pest infestations, were put to the tenants in cross-examination and they had the opportunity to answer. In addition, the tenants had the opportunity to make submissions to the Tribunal. The lines of dispute were well known to the parties to the litigation. In the circumstances there was no denial of natural justice.
Leave to appeal is refused.
Ground 3: The Tribunal acted in breach of s 105(2) of the NTCAT Act in that it made no findings of fact concerning the premises before it on the question of the lack of reasonable comfort arising from the absence of a shower curtain or screen.
The tenants assert that the Tribunal failed to make relevant findings of fact in deciding issue 11 in the list of agreed issues, which was the question of whether the failure by the landlord to provide a shower curtain or screen in the bathrooms of the houses breached the landlord’s obligation to provide premises which are habitable because they did not provide reasonable comfort. It is referrable to the 2019 applications in relation to Lots 63 and 67[74] and the Tribunal reasons for decision on the issue are at
paragraphs [110] – [124] of the decision.[75]
The tenants argued in the Tribunal that the landlord was in breach of the habitability obligation with respect to Lots 63 and 67, based on the requirement of reasonable comfort, because failure to provide a curtain or screen failed to cater for the tenants’ need for privacy taking into account the design of the bathrooms.[76]
On appeal, the tenants’ position is that the Tribunal did not provide sufficient reasons on this question because it did not, as required by s 105(2) of the NTCAT Act,[77] make necessary findings of fact. The tenants argue that the Tribunal should have made findings about the different layouts in the bathrooms of the house occupied by Mr Jack[78] compared with that of Ms McNamara and Mr Brown, the different number and category of occupants of each house, and their different privacy needs. The tenants further argue that those are objective circumstances which should have been taken into account by the Tribunal in coming to its conclusion that the absence of a shower screen or curtain did not mean that there was a failure of the landlord to let premises which provided a reasonable level of comfort, and were therefore habitable in accordance with the term implied by s 48(1) of the RTA.
The layout of the houses, including the bathrooms, was not in dispute in the Tribunal proceeding. The President visited the houses as part of the hearing, and inspected the bathrooms, and plans were tendered in evidence by the landlord which showed the design of the houses, including that the toilet was within the bathroom in Lots 63 and 67. It was not entirely clear whether the number of occupants at Lot 67 was in dispute, but even if it was, the tenants’ submission to the Tribunal on this issue is quoted at [120] of the Tribunal reasons and directly refers to the colocation of the toilet and showers, and the fact that Lot 67 had 11 occupants.
In addition, in oral submissions before the Tribunal in relation to Lot 67 the tenants’ counsel referred to the number of residents and the argument that the layout of the toilets, showers and laundry meant that while one person was having a shower it was not possible to use the toilet without walking through the shower room, and it was also not possible to use the laundry, without interfering with their privacy.[79]
It is clear from the Tribunal reasons that the Tribunal accepted and considered all of those undisputed facts. It was not necessary for the Tribunal to explicitly make findings in relation to facts which were recited in the decision, plainly accepted, and not in dispute.[80] It is apparent from the Tribunal reasons that its decision was made in full knowledge and acceptance of the facts now asserted by the tenants not to have been considered and the submissions made by the tenants at the hearing. The tenants’ submission that there was no finding of relevant facts on issue 11 must be rejected.
Leave to appeal is refused.
Ground 4:The Tribunal’s decision was legally unreasonable in that it:
a. made findings that there was ‘broadly asserted ineffectiveness of the [air conditioning] unit’ and ‘there was no evidence before the Tribunal about the size or capacity of the [air conditioning] unit [or] its level of effectiveness’ in circumstances where the Tribunal member was shown that unit and experienced it when it was on; and
b. found that spiders were only in the bathroom because the whole premises were in an unreasonably dirty condition.
This ground of appeal relates to two decisions relating to Lot 67. In each case the complaint is that the impugned findings were illogical or otherwise “bizarre” in the sense described in Minister for Immigration and Border Protection v SZVFW.[81]
The first complaint is as to the Tribunal decisions concerning the split-system air conditioner in the loungeroom of Lot 67. This is the same air-conditioner for which an urgent repair order was sought, as discussed above at ground 2A. Compensation based upon the ineffective operation of the unit was also claimed as part of issue 12 before the Tribunal. The claim was based on an alleged breach of the habitability obligation.[82]
The Tribunal dismissed the application. In doing so, the President referred to the reasons given for rejecting the emergency repair claim at issue 10.[83] There were three reasons for the decision. First, the Tribunal was not satisfied that the air conditioner formed part of the leased premises on the evidence presented by the tenants, who bore the onus of proof on that issue.[84] The Tribunal determined that it was unable to find that the landlord installed the air conditioner in the absence of any evidence to that effect from the tenants and in the face of the evidence from the landlord that it did not do so.[85] The tenants’ position was that they did not install the unit.
Second, the Tribunal found that, (impliedly assuming that the tenants installed the air conditioner) unauthorised installation of the appliance was a breach of the tenancy agreement,[86] disentitling the tenant to an order. However, as discussed above, this was a secondary consideration.
Third, the Tribunal found that there was no evidence as to an identified fault with the air conditioner. This finding was largely directed to the meaning of emergency repairs in s 62(2)(m) of the RTA, as discussed above. However, it is this third finding which is the subject of this proposed ground of appeal.
The tenants’ argument is that, having experienced the effectiveness of the air conditioner for himself on the view, the Tribunal member could not have found that there was no evidence of any fault, failure, breakdown or damage requiring repair.[87] However the Tribunal’s statement that there was “broadly asserted ineffectiveness of the unit”[88] was not a finding but a summary reference to the tenants’ submissions. The Tribunal went on to say that there was no evidence as to the level of ineffectiveness of the unit. The tenants’ complaint assumes that the President personally found of his own experience that the air conditioner was ineffective, however there is no basis for that submission. A fair reading of the reasons reveals that the Tribunal did not find that the unit was ineffective. As he had the benefit of experiencing the unit in operation for himself, and noting his statement that there was no evidence about the effectiveness of the unit, and that none was pointed to by the tenant, there is no basis on which I can conclude that the Tribunal’s finding of fact was legally unreasonable.
I also note that the main reason that the Tribunal did not find that the failure to repair the air conditioner was not a breach of the habitability obligation by the landlord was that the Tribunal was not satisfied that the landlord had installed it and therefore it was not part of the premises which the landlord was obliged to maintain. Once that finding was made the actual operation of the air conditioner became a moot point.
It does not appear that the tenants argued before the Tribunal that the failure to provide an air conditioner was a failure to provide premises which were habitable, in relation to any of the properties. That would have been a different claim.
The second complaint relates to the tenants’ claim for compensation for the presence of spiders in the bathroom of Lot 67. The Tribunal found that the presence of the spiders was as a result of the tenants’ failure to clean the bathroom. The Tribunal also found that the premises were generally maintained in an unreasonably dirty condition.[89]
The tenants argue that the findings were unreasonable because (a) it was never put to Mr Brown that these tenants failed to keep the ceiling clean and therefore there was a denial of natural justice; (b) there was a reliance upon s 51, which was not included in the list of issues; (c) the finding was illogical because it found that the spiders were in the bathroom because the whole house was in an unreasonably dirty condition when, if that were the case, there would be spiders in the whole house, not only the bathroom (notwithstanding the tenants’ submission that spiders tend to gather in bathrooms for reasons unrelated to cleanliness, i.e. water); and (d) there was no evidence connecting spider infestation with dirtiness, noting that although all three houses were dirty there was only a spider infestation in Lot 67.
The tenants’ submission that they were denied natural justice cannot be accepted. The transcript of the Tribunal hearing shows that although questions were not asked specifically about the ceiling, there was evidence from Mr Brown that the tenants did not frequently clean the bathroom.[90] Spiders are a common pest and may be present in any house. There was no evidence that the spiders posed a risk to health or safety. The Tribunal is not bound by the rules of evidence and is entitled to inform itself in any way it considers appropriate.[91] In this case the Tribunal member inspected the bathroom, and the rest of the house, himself. The tenants had an opportunity to give evidence, including in cross-examination, and to make submissions on the issue. The reference to s 51 was also not unfair, for the same reason I have explained in relation to appeal ground 2A.
The complaint of illogicality misconstrues the Tribunal reasons. The Tribunal did not find that the dirtiness in other parts of the house caused the spiders to be in the bathroom. What the Tribunal found was that the tenants did not clean the spiders from the bathroom, and that was why they were there. Periodic removal of spiders, and their webs, is something which is part of ordinary cleaning of any house. The fact that the house overall was generally in a dirty condition was a relevant matter which the Tribunal was entitled to take into account (because it indicated the tenants did not often clean the house), but it was not the sole, or even the main, basis for the finding. The Tribunal also relied upon the evidence of the tenant, Mr Brown, and the Tribunal member’s own inspection. The Tribunal was entitled to draw the inference that the presence of spiders in the bathroom of Lot 67 was caused by the tenants’ failure to remove them.
I also note that whether the house, or even the bathroom, was in an “unreasonably dirty condition” so as to involve a breach of the tenancy agreement by the tenants was not an answer to the tenants’ claim. However, in my view the Tribunal did not use the finding of general dirtiness in that way. A tenant may choose to live with spiders on the bathroom ceiling. That does not necessarily mean that the premises, or even the bathroom, is in an unreasonably dirty condition. However, nor does it mean that the presence of spiders involves a breach of the tenancy agreement by the landlord.
In finding that the landlord was not in breach of the term in s 57(1) the Tribunal was not required to find that the tenants were in breach of s 51(1), although the finding may have been open on the evidence.[92] Further, such a finding would not necessarily excuse a landlord, depending on the nature of the breach alleged. In many cases it may be irrelevant. They are two separate allegations of breach, and the interrelationship, if any, depends on the facts and circumstances. In this case, the relationship was simply that there was a general failure to clean the house, including, relevantly, by removing spiders webs from the bathroom as any tenant would be expected to do.
No legal unreasonableness has been established. Leave to appeal is granted and the ground of appeal is dismissed.
Ground 5:The Tribunal failed to apply a correct understanding of s 57 of the RTA by interpreting the opening phrase ‘subject to this Part’ to mean that the Part was subject to s 57 (including ss 48 and 49), rather than that s 57 was subject to the remainder of the Part.
Section 57 of the RTA is as follows:
57 Landlord’s obligation to repair
(1)Subject to this Part, it is a term of a tenancy agreement that the landlord:
(a)must ensure that the premises and ancillary property are in a reasonable state of repair when a tenant enters into occupation of the premises; and
(b)must maintain the premises and ancillary property in a reasonable state of repair, having regard to their age, character and prospective life.
(2)A landlord is not in breach of the term specified under subsection (1) unless he or she:
(a)has notice of the defect requiring repair; and
(b)fails to act with reasonable diligence to have the defect repaired.
(3)A landlord is not in breach of the term specified under subsection (1) if:
(a)the repairs were known to the tenant to be required at the time of entering into the residential premises agreement;
(b)the repairs are not emergency repairs within the meaning of section 63;
(c)the tenant has, in writing, waived the right to have the particular repairs made; and
(d)the premises are habitable and meet all health and safety requirements specified under any Act.
(4)For the purposes of this section, ancillary property includes gardening or watering equipment or other chattels provided in relation to a garden but does not include vegetation, other than a tree that poses a risk to a person’s safety.
Because s 57(1) is subject to the other provisions of Part 7, it has operation where it is not inconsistent with or repugnant to those provisions.[93] The phrase “subject to” indicates no more than which provision is to prevail in the event of a conflict. It does not imply that there will be a conflict in every case.[94]
The tenants submit that the Tribunal erred because it misconstrued s 57(1) as the “primary obligation to which ss 48 and 49 (among others) were subordinate”. The tenants further argue that, due to that error, the various “repair issues” (allegations of breach by the landlord) were first analysed by reference to s 57(1), with the associated expectation that notice was required under s 58(1), and only if not upheld under that provision, considered pursuant to other sections, such as 48 or 49.
The reasons show that the Tribunal considered each item of repair set out in the tenants’ tables in sequence. The 2019 and 2022 Repair Tables identified the section of the RTA the tenants primarily relied upon, noting that, as agreed at issue 13 of the list of issues, where a claim in reliance upon s 48 or s 49 was unsuccessful, the claim was also to be considered by reference to s 57(1).
[26] AB 139.
[27] AB 147 – 171.
[28] AB 181 – 186.
[29] Sections of the RTA are referred to for reasons of brevity and because that was the approach taken by the Tribunal. In all instances such references are to be understood as references to the terms of the tenancy agreement implied by operation of those sections.
[30] And in this appeal.
[31] Landlord’s submissions in reply to the Tribunal at [58]–[65], AB 461-463.
[32]Described at appellants’ written submissions, 1 December 2023 at [12], AB 21; transcript 13 July 2023 at [53].
[33] Appellants’ closing submissions to Tribunal at [125] – [131], AB 359-361.
[34]Appellants’ closing submissions to Tribunal at [132] – [139], AB 361-362.
[35] Tenants’ written submissions, 12 April 2023 at [14], AB 21.
[36] Tribunal reasons at [153] – [164], AB 144-146.
[37] Exhibit Book (‘EB’) 3, volume 1, p 4930.
[38] Limitation Act s 44(3)(b)(i).
[39] AB 172 – 173.
[40] Tribunal reasons at [184-] – [186], AB 173-174.
[41] AB 174 – 176.
[42] Tribunal reasons at [193] – [196], AB 175.
[43] Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 at [49] – [50].
[44] The relationship to ground 19 lies in the tenants’ assertion that they were not permitted to amend the list of issues or list of repairs to which the issues related on two occasions, which is also addressed at ground 19.
[45] See EB 1 at pp 9, 107 and 192.
[46] AB 282.
[47] AB 306.
[48] Transcript 25 July 2022 at [36-37], AB 507-508.
[49] EB 1 at [97].
[50] Transcript 25 July 2022 at [37], AB 508.
[51] As explained in relation to ground 19 this was a completely separate issue. The addition of new claims meant the addition of new causes of action for compensation pursuant to s 122 and was relevant to the Limitation Act but had nothing to do with the argument about breach of the landlord’s obligations generally.
[52] Transcript 3 August 2022 at [17], AB 906.
[53] Tenants’ closing submissions to the Tribunal at [88] – [101], AB 350-353.
[54] Tenants’ closing reply submissions to the Tribunal at [44] – [45], AB 12.
[55] Transcript 13 July 2023 at [46].
[56] AB 139 – 142.
[57] Landlord’s opening submissions at [71], [76], [78], [83], AB 306-310.
[58] Transcript Tribunal hearing 26 July 2022 at [105], see generally argument at [106] – [107], AB 576-578.
[59] Tribunal decision at [31] – [32], AB 118.
[60] Tribunal decision at [34] – [54], AB 118-122.
[61] Landlord’s written submissions to Tribunal at [56], AB 303-304.
[62] Tribunal decision at [93] – [108], AB 132-136.
[63] Transcript 3 August 2022 at [20], AB 909: split system was “provided by the landlord”.
[64] Tenants closing submissions at [52], AB 340 – 341. A submission was also made about the premises at Lot 67 not being in a “state of disrepair” at [53].
[65] Appellants’ written submissions, 12 April 2023 at [26], AB 24.
[66] This part of the Tribunal’s reasons does not have separate paragraph numbers but instead refers to the alphabetical identification of each issue enumerated in the tenants’ repair tables which are at AB 375-380 in relation to the 2019 applications and AB 381-383 for the 2022 applications.
[67] In reliance upon the statement in Plaintiff M47/2018 v Minister for Home Affairs (2019) 265 CLR 285 at [40] referring to Blatch v Archer (1774) 1 Cowp 63 at 65; 98 ER 969 at 970.
[68] (1959) 101 CLR 298.
[69] (2001) 51 NSWLR 572 at [15]-[16].
[70][2011] NTSC 11 at [40].
[71] Transcript Tribunal hearing 25 July 2022 at [55] - [58], AB 526-529.
[72] Transcript Tribunal hearing 25 July 2022 at [66] – [67], AB 537-538.
[73] Tribunal reasons p 47-48; AB 157-158.
[74] 2019-02718-CT and 2019-02722-CT. Although the Appellants’ written submissions refer to all three 2019 proceedings at [30], and this was referred to in argument [Transcript 13 July 2023 at [31]], this appears to be an error. See Landlord’s written submissions dated 10 July 2023 at [67] and Tribunal decision. An additional argument in relation to the shower curtains/screens was that there was a breach of the habitability obligation on safety grounds, but that does not appear relevant to this ground of appeal as framed.
[75] There may be is some overlap, or lack of clarity, between this ground and ground 11. Issues raised as to the appropriate ‘class’ of persons to be considered in relation to the test for the determination of habitability are dealt with in relation to ground 11.
[76] Before the Tribunal there also appears to have been a health and safety argument (based on the risk of slipping on a wet floor), which is dealt with in the Tribunal reasons and which appears to have related to all three lots [tenants’ closing submissions before the Tribunal AB 341-344]. However, that was not pursued on this ground of appeal.
[77] As it was at the time of the decision. Since amended 27 November 2023.
[78] The written submissions refer to Mr Jack [at [31] Court Book 8] however it is not clear that Mr Jack’s property was one where the toilet and bathroom were collocated, and in any event he lived alone, so the relevance of the comparison is not apparent.
[79] Transcript, 13 July 2023 at [65].
[80] DL v The Queen [2018] HCA 26 at [33].
[81] (2018) 264 CLR 541 at [82] per Nettle and Gordon JJ.
[82] As described above (ground 2A) the tenants sought an order for emergency repairs on the ground that this item met the criteria in s 63(2)(m) of the RTA because the fact that the air-conditioner did not effectively cool the premises was said to unduly inconvenience the residents.
[83] Tribunal reasons at [92]-[109]; AB 132-136. That part of the Tribunal’s reasons appears to respond directly to the tenants’ closing submissions on the issue at AB 340-341.
[84] Tribunal reasons at [100], [102] – [107], AB 134 - 135.
[85] Tribunal reasons at [22-26], AB 132-136].
[86] Within the meaning of s 63(1)(b) of the RTA.
[87] Tribunal reasons at [108].
[88] Ibid.
[89] Tribunal reasons at [60], AB 170.
[90] Transcript Tribunal hearing 26 July 2022 at [100]-[101], [103]-[104]; AB 571-572, 574-575.
[91] NTCAT Act s 53(2)(b). Even if that were not the case this is the sort of matter of which the Tribunal could take judicial notice: Evidence (National Uniform Law) Act 2011 (NT) s 144.
[92] The Tribunal correctly summarised the separate nature of the obligations at [35], AB 119.
[93]McGinty v Western Australia (1996) 134 ALR 289, 327 per Toohey J, and the cases cited there.
[94] Pearce, DC, Statutory Interpretation in Australia, 10th ed, LexisNexis, Australia, 2024, p 483 [12.4].
[95]RTA s 122(3)(c).
[96] Tribunal reasons at [34] and [68].
[97] Reference at footnote 64 of appellants’ submissions to the cross appeal at [41].
[98] Tribunal reasons at [27].
[99] Tribunal reasons at [20]-[70], AB 116-125.
[100] [2023] HCA 31 (‘Young v CEOH’).
[101] [2024] NTCA 10 (‘CEOH v Pepperrill’).
[102] Young v CEOH at [21] – [23].
[103]RTA s 3(A).
[104] RTA s 48(2).
[105] Tribunal reasons at [31] – [70].
[106] Tribunal reasons at [37] – [61], AB 147– 171. – y.
[107] Tribunal reasons at [42], AB 152.
[108] CEOH v Pepperill at [96].
[109] The Tribunal reasons on this item need to be read with the general findings at [155] – [159], [161], [164].
[110] The appellants’ written submissions at [50] refer to the error being ‘of the kind’ described at [10] of the submissions, which refers to a failure to weigh evidence and submissions and articulate the evaluative process in the reasons.
[111] Tribunal reasons at [145] – [151].
[112] Tribunal reasons at [147].
[113] Transcript Tribunal proceeding 25 July 2022 at [97-98]; AB 568-569.
[114] Mr Brown’s evidence was that he did not know how the shower head had been broken off: Transcript 25 July 2022 ata [97], AB 568. He went on to say that he had too many visitors and a lot of things got broken: Transcript at [98], AB 569.
[115] The exhibit books were also part of the material relied upon by the parties in this Court.
[116] EB 3, V1 at [5419] – [5420].
[117] Tribunal reasons p 58; AB 168
[118] RTA s 122(3)(a).
[119] Tribunal reasons at [37], AB 147.
[120] Unattested declaration of Bradley Parsons [8] – [19], AB 994-995. That evidence was generally referred to at Tribunal reasons at [170] in another context, AB 171, and also relied upon at the Tribunal’s discussion of Lot 63 item (n) as evidence of notification at AB 184.
[121] Tribunal reasons at [152] – [153], [156] – [160] and [164].
[122] Tribunal reasons at [46], AB 156.
[123] Tenants’ written submissions, 7 April 2023 at [8], AB 19.
[124] Ibid at [10], AB 20.
[125] [2014] FCAFC 156.
[126] Ibid at [116] per Middleton and Wigney JJ.
[127] Tenants’ written submissions, 7 April 2023 at [58]; AB 33.
[128] Tribunal reasons at [71] – [78], AB 125-128.
[129] Ibid at [76], AB 127.
[130] See discussion below at cross appeal ground 3.
[131] Tribunal reasons at [179] – [181]; AB 173.
[132] Tribunal transcript 26 July 2022 p 93; (AB 564-565); 136 (AB 607).
[133] There was also a claim for breach of s 57(1) in accordance with issue 13. However, see discussion in relation to ground 2A and cross appeal 3 in relation to the role of s 57(1) where there is no breach of s 48(1)(a) because the lack of habitability is caused by an act or omission of the tenant in accordance with the qualification in s 48(2)(a).
[134] Tribunal decision at [39], AB 149. It was not argued in this Court that a substantial cause was not a cause for the purpose of s 48(2)(a).
[135] AB 149. See also discussion of the relevant evidence of Mr Jack in relation to appeal ground 2B above.
[136] Tribunal reasons at [39]; AB 149.
[137] There is a reference to a breach by the tenants of s 55(1) in that they removed the stoves at various points. Presumably upon the basis that the stoves were either fixtures or chattels and therefore part of the “ancillary property” as defined at s 4 of the RTA. However the ground of appeal does not refer to this finding.
[138] The Tribunal reasons also refer to the tenants being in breach of s 55(2). This appears to be an error, the reference was presumably to s 55(1), removal of a fixture/chattel. However that reference appears to be ancillary to the Tribunal decision and not subject to a ground of appeal.
[139] This is also the basis for cross appeal 2.
[140] Discussed in relation to other repair items in particular lot 67 item (l), AB 166-167 and the Tribunal reasons on this item should be read with the reasons relating to item (l).
[141][2022] NTCA 1 at [50], footnotes omitted.
[142] Reference at footnote 64 of appellants’ submissions to the cross appeal at [41].
[143] Ibid at [96].
[144]Tenants’ written submissions, 12 April 2023 at [76].
[145] Tribunal decision Lot 67 item (h) at [54]; AB 164.
[146] Tenants’ additional submissions 9 April 2025.
[147] See ground 5 at [126] above.
[148] Tribunal reasons at [168], quoting CEO (Housing) v Young.
[149] Lot 63(c).
[150] Lot 63(e).
[151] Lot 63(g).
[152]Lot 63(h).
[153] Lot 63(i).
[154] Lot 63(p).
[155]Lot 63(r).
[156] Transcript 14 July 2023 at [87].
[157] Tribunal reasons regarding Lot 63(d) at [46], AB 156.
[158] Tribunal reasons at [207] – [208].
[159] Tribunal reasons at [45] and evidence referred to there, including photographs of the hole.
[160]Item 67(k), 2019 repair table.
[161] Item 67(t), 2019 repair table.
[162] Item 67(v), 2019 repair table.
[163] Item 67(d), 2022 repair table.
[164]Because that is the only four-bedroom home involved in the proceeding.
[165] Tribunal reasons at [111] – [115].
[166] Application 2019-02699-CT.
[167] Transcript 13 July 2023 at [82].
[168] Applicant’s written submissions to the Tribunal at [60] – [61], AB 343.
[169] Transcript 14 July 2023 at [129].
[170] Transcript 14 July 2023 at [82].
[171] EB 2, volume 3 at [2381].
[172] Tribunal reasons regarding Lot 22 (g) at [40], AB 149-150.
[173] Transcript 14 July 2023 at [83].
[174]CEO (Housing) v Young at [30] – [51].
[175] Tenants’ written submissions, 12 April 2023 at [102] – [103].
[176] CEO (Housing) v Pepperill at [76] – [77] and [84].
[177] Ibid at [96].
[178] Tribunal reasons p 42 at paragraph (i), AB 142.
[179] Tribunal reasons at [53]-[54] at paragraphs (c), (e), and (f), AB 163-164.
[180] [2020] NTSC 59.
[181] Tribunal reasons at [42], AB 152.
[182] Tenants written submissions, 21 April 2023 at [111] and footnotes 163 and 164.
[183] Set out at Tribunal reasons at [18], AB 115.
[184] Tenants’ written submissions to Tribunal at [66]-[68].
[185]Ibid at [67].
[186] Young v CEOH at [23].
[187] RTA s 12.
[188] Tenants’ closing submissions to Tribunal at [110], AB 29.
[189] Tenants’ opening submissions to Tribunal, AB 288-294.
[190] Ibid, AB 290.
[191] Tenants’ closing submissions to Tribunal at [84], AB 349.
[192] Although the item is not specified, counsel referred to p 51 and 52 and to the Tribunal reasons at Transcript 14 February 2023 at [88-89], and I therefore infer that this was the subject item.
[193] Tribunal Reasons at [51-52], AB 161-162.
[194] Adjrun v Chief Executive Officer (Housing) [2022] NTSC 42 at [48] and the cases cited there.
[195] Creake, R, et al, Control of Government Action, 6th ed, LexisNexis, 2022, [14.3.187] quoting Minister for Immigration and Multicultural and Indigenous Affairs v NBDS (2006) 90 ALD 614, [11] per Allsop J.
[196] Transcript 14 July 2023 at [88].
[197] Tenants’ written submissions, 7 June 2023 at [115]; AB 46.
[198] Erroneously referred to as EB 580 at Tribunal Reasons at [51], AB 161.
[199] EB 3 at [5239].
[200] Young v CEOH.
[201] Ibid at [1], per Keifel CJ, Gaegler and Gleeson JJ.
[202] Ibid at [24].
[203] AB 177-178, 184-185.
[204] As found by the Tribunal at [45] of the reasons, AB 155.
[205] [2002] NSWCTTT 855 (13 December 2002).
[206] [2015] NTRTCmr 6.
[207] Ibid at [51].
[208] Young v CEOH at [25].
[209] Nationwide News Pty Ltd v Rush [2020] FCAFC 115 at [472].
[210] (1936) 55 CLR 499, 504-5.
[211] Although Mr Jack argued elsewhere that his house had defects which made it not habitable during the relevant period.
[212] Tribunal decision at [190] – [197], AB 174-176.
[213] [2022] NTSC 83 (‘Badari’).
[214] Badari at [36].
[215] Ibid at [44].
[216] There might be an issue as to the validity of r 5 if it is inconsistent with s 23(4), however that was not argued in this proceeding.
[217] Tribunal reasons at [188], AB 174. This is also consistent with the evidence of Ms Pepperill who explains that she and her partner each paid $140 a fortnight for their dwelling: transcript 26 July 2022, AB 607.
[218] Tenants’ written submissions, 12 April 2023 at [139], AB 52.
[219] Tribunal reasons at [187] – [188].
[220] Tribunal reasons at [133] quoting Tribunal reasons of 26 July 2021, AB 140
[221]Tribunal reasons at [175] – [186].
[222] This is also discussed above in relation to ground 2A. See schedule at AB 434-444 for details of repair/defects claims relating to the 2022 applications including the dates of notification and periods of claim. A significant number, but not all, of the claims in the 2022 applications appear to have pre-dated 14 November 2016.
[223] Noting the abrogation of the rule in Weldon v Neal by the Limitation Act s 48A.
[224] Tribunal reasons at [132], AB 140.
[225] Tribunal reasons at [139], AB 142.
[226] This is not the case in other jurisdictions. See for example Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 127.
[227] Tribunal reasons at [5] – [15] and [130] – [134] extracting part of Tribunal decision of 26 July 2021, and at [224] – [230].
[228] AB 997 – 1001.
[229] Transcript 13 July 2023 at [47].
[230] Tribunal decision, 26 July 2021 at [19], AB 1000.
[231] Tribunal decision, 26 July 2021 at [22] – [23].
[232] Tribunal reasons at [11] – [14].
[233] Time limit for instituting an appeal is 28 days pursuant to r 82.04(2)(b) of the Supreme Court Rules 1987 (NT).
[234]The time bar in s 12 Limitation Act applies to an ‘action’ which is defined as ‘any proceeding in a court of competent jurisdiction’. A ‘court of competent jurisdiction’ is defined in s 17 of the Interpretation Act 1978 (NT) to include a tribunal.
[235] Or in s 53(2)(c) NTCAT Act which is probably more relevant.
[236]The date of publication of the Tribunal’s reasons for refusal of the application for amendment of the 2019 applications.
[237] Tribunal reasons at [18].
[238] Tenants’ written submissions, 12 April 2023 at [144].
[239] R. Creyke, et al, Control of Government Action, 6th edition, 2022, LexisNexis, [4.5.26].
[240] AB, 111.
[241] AB, 195, 216.
[242] Tribunal reasons at [1].
[243] Transcript Tribunal hearing 28 July 2022 at [267-269], AB 738-740.
[244] Ordinary application for production of the policy document made 22 April 2022, AB 320-323.
[245] See 21 May 2021 tables of repairs at AB 288-294.
[246] The list of issues is set out in full at Tribunal reasons at [18].
[247] Tenants’ written submissions to the Tribunal at [109] – [124].
[248] Tribunal transcript 3 August 2022 at [17-18] and [34-35].
[249] Tribunal transcript 3 August 2022 at [46-47].
[250] Landlord’s opening submissions, 28 May 2021 (AB 307-309), expressly adopted in landlord’s closing submissions of 16 September 2022 at [1] (AB 384), and annexure (AB 397-398).
[251] Tribunal reasons at [59]-[60], AB 169-170.
[252] Landlord’s submissions, 12 May 2023 at [192].
[253] Tribunal reasons at [218], AB 179.
[254] Tribunal reasons at [52], AB 162.
[255] EB 1 at [197]-[208].
[256] EB 1 at [197].
[257] Tribunal reasons at [83], AB 130.
[258] [2021] NTSC 81 (‘Jack (No 2)’). This case concerned the same tenant of Lot 22, as in this case.
[259] Jack (No2) at [43].
[260] Ibid at [50].
[261] Ibid at [58].
[262]Unattested declaration Jeremy Clifton, EB 2 at [887].
[263]Tribunal transcript 26 July 2022, p.93; AB 564-565.
[264] Ibid at [104] and [108]; AB 575, 579.
[265] Ibid at [118]; AB 589.
[266] Ibid at [136]-[137]; AB 607-608.
[267] Tribunal reasons at [78], AB 129.
[268] Royal Society for the Prevention of Cruelty of Animals (Vic) Inc v Marson Constructions Pty Ltd [2000] VSCA 38 at [24] per Ormiston JA.
[269] Macquarie Dictionary, 5th ed, Macquarie Dictionary Publishers Pty Ltd, Sydney, 2009.
[270] Willis v Whiteside (1987) 2 Qd R 284, 288, per Andrews CJ.
[271] That provision is an offence governed by Part IIAA of the Criminal Code. No fault element is prescribed for an offence pursuant to s 20(4). Therefore, by operation of s 43AM of the Criminal Code the fault element is intention. Whether there is an intention to exclude the operation of the RTA in any particular case will be a question of fact.
[272] The prescribed form is as per r 10 and schedule 2 of the Residential Tenancies Regulations.
[273] Tribunal reasons.
[274] Supra at [78].
[275] Young v CEOH.
[276]An example is Whiteaker v Commissioner of Tenancies & Tyron & Gooding [2002] NTMC 17 where the tenancy agreement, which otherwise contained the clauses required by s 19(1), also contained a clause requiring the tenant to pay for tick and flea treatment at the end of the tenancy, a requirement which was held to be inconsistent with the RTA and void.
[277] Tenants’ submissions, 29 April 2025 at [3].
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