Bush v Menzies

[2024] NSWCATCD 43

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Bush v Menzies [2024] NSWCATCD 43

Hearing dates:

17 May 2024

Date of orders:

4 June 2024

Decision date:

04 June 2024

Jurisdiction:

Consumer and Commercial Division

Before:

G Blake AM SC, Senior Member

Decision:

(1) The order made on 17 May 2024 allowing the applicant to seek the orders in the document which is pages 1 and 2 of the bundle of documents filed on 1 March 2024 so far as paragraphs 1, 4 except so far as the cleaning of the oven and flue, 6 to 12, 24 and 25 except for the last two dot points is varied by adding “16 to 18 except for the weeds on the fence and the removal of the fence” after “12”.

(2) The respondent is to carry out the following repairs to the premises the subject of the residential tenancy agreement between the applicant and himself by 4 July 2024:

(a) the floorboards in the loungeroom approximately 1.5 metres from the main bedroom where the previous repair has come away;

(b) the knob of the stove with a detached sleeve;

(c) the oven door seal;

(d) the sliding closet door in the second bedroom.

(3) The applicant may instal safety rails for each of the toilet and shower in the ensuite, the toilet in the laundry, and the bath in the main bathroom of the premises conditional on the safety rails being installed by a licensed builder.

(4) The respondent is to pay the sum of $510.92 to the applicant immediately.

(5) The proceedings are otherwise dismissed.

If you do not receive the money payable to you as directed by this order, you can get a certified copy of this money order from NCAT. You can then register it with the Local or District Court to enforce the order. For more information about enforcing money orders, visit the NCAT website Failure to pay the money owed by this order in the time directed can result in enforcement action being taken in the Local or District Court. If this happens additional costs and interest can be added to the amount payable.

Catchwords:

LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Repairs — Landlord’s duty - whether repairs are required – whether compensation payable for failure to carry out repairs - Alteration of premises by tenant – whether tenant may instal safety rails - Right to quiet enjoyment – no substantial interference

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW), ss 28, 29, 38, 45, 58, Sch 4, cl 3

Civil and Administrative Tribunal Rules 2014 (NSW), r 13

Civil Liability Act 2002 (NSW), Pt 2

Residential Tenancies Act 2010 (NSW), ss 29, 44, 50, 52, 65, 68, 187, 190

Residential Tenancies Regulation 2019 (NSW), cll 22, 39, 40

Cases Cited:

Compass Housing Services Co Limited t/as Home in Place v Gower [2023] NSWCATAP 24

Hawkesbury Nominees Pty Ltd v Battik Pty Ltd [2000] FCA 185

Jeray v Blue Mountains City Council [2024] NSWCATAP 66

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

Tanner v NSW Land and Housing Corporation [2023] NSWCATCD 24

Telstra Corporation Ltd v Sicard Pty Ltd [2009] NSWSC 827

Texts Cited:

None cited

Category:

Principal judgment

Parties:

Beverly Bush (Applicant)
Mark Menzies (Respondent)

Representation:

Applicant (self-represented)
R Cleary (Managing agent) (Respondent)

File Number(s):

2023/00373688 (formerly RT 23/44687)

Publication restriction:

Nil

REASONS FOR DECISION

Overview

1. In these proceedings Beverly Bush (Ms Bush), who is the tenant, seeks relief under the Residential Tenancies Act 2010 (NSW) (RT Act) against Mark Menzies (Mr Menzies), who is the landlord, of premises situated at Urunga in New South Wales (the premises) under a residential tenancy agreement between them (the tenancy agreement).

2. I have decided that Mr Menzies should carry out some repairs to the premises, Ms Bush may instal safety rails in particular locations in the premises subject to a condition, Mr Menzies should pay compensation of $510.92 to Ms Bush, and the proceedings should otherwise be dismissed.

The factual background

3. The premises are located in the local government area of Bellingen Shire Council (the Council). The premises has a house constructed in an architectural style known as a “Queenslander” with three bedrooms and two bathrooms which is raised above the ground on stilts and a fully fenced yard comprising lawn and garden beds with shrubs and bushes adjacent to the boundary fences.

4. Detize Pty Ltd, which carries on business under the name of Cardow & Partners Property Urunga (C&P), has been the managing agent retained by Mr Menzies for the purpose of leasing the premises. Andree Cardow (Mr Andree Cardow) and Grant Cardow are the principals of C&P. Rachel Cleary (Ms Cleary), a Senior Property Manager of C&P, has had day to day responsibility for the management of the tenancy agreement.

5. On 27 June 2023, Ms Bush signed the tenancy agreement between Mr Menzies as the landlord and herself as the tenant in respect of the premises, and was provided with a copy of the ingoing condition report completed on behalf of Mr Menzies. The tenancy agreement, which is for the period of 12 months from 28 June 2023 at a rent of $550.00 per week, is in the standard form of the residential tenancy agreement of the Real Estate Institute of N.S.W issued in May 2023, additionally includes special conditions, and identifies the address of the premises by specifying its number and street (the postal address).

6. On 29 June 2023, Ms Cleary signed the tenancy agreement in her capacity as Mr Menzies’ agent.

7. On 6 July 2023, Ms Bush collected the keys to the premises.

8. On 7 July 2023, Ms Bush completed and signed the ingoing condition report (the 7 July 2023 condition report).

9. On 28 July 2023, Ms Bush commenced her occupation of the premises.

10. Since at least 28 July 2023, Ms Bush has had an account with Greater Bank which is part of Newcastle Greater Mutual Group Ltd (the Bush account).

11. Since Ms Bush commenced her occupation of the premises there have been disputes between the parties as to whether Mr Menzies has breached the tenancy agreement by reason of the condition of the premises and whether the rent payable under the tenancy agreement is excessive.

The history of the proceedings

12. On 29 September 2023, Ms Bush as the applicant commenced proceedings RT 23/44687 against Mr Menzies as the respondent by filing a tenancy application (the Bush application) in which she:

1. claimed the following orders:

“s 65(1)(a) - an order that the landlord carry out repairs

s 44(1)(b) - An order that the rent payable is excessive due to the reduction or withdrawal of any goods, services or facilities provided with the residential premises

s 187(1)(d) - an order as to compensation”

2. set out the following reasons for seeking these orders:

“Section 65(1)(a) Landlord to carry out repairs/maintenance.

1) Swamp area - even though it’s on the adjacent block (which was not disclosed to me at the time I viewed the property) it still has significant impact on my enjoyment of the property a) I cannot use the deck - which is ¼ of the size of the house, as there are mosquitos. Even Council commented that it will be a breeding ground for mosquitos. My Doctor has warned me to be very careful and mentioned Ross River fever and a couple of other diseases which the mosquitos carry. She feels at my age, (I am almost 77), it is risky for me to come into contact with the mosquitos.

b) I cannot use the yard as it has been smelly and so soft and muddy that a ride on mower could not be used.

I ask for an ORDER that the landlord should liaise with Council re the storm water pipe to rectify the problem of the stagnant water lying on the property. I was advised by the agent that there was no problem with water lying on the property. This is obviously not the case.

Information which I received from the Tenancy Advisory states that “the landlord or agent MUST TELL you if they are aware if the property has significant health and safety risks.”

Also, Section 19.6 of the Lease states that “the landlord agrees to comply with all statutory obligations relating to the health or safety of the residential premises.”

Obviously then the Landlord is in breach of this.

Also, the felled trees which were just pushed into the “swamp” area needs to be completely cleaned up so it is not an area which will attract snakes and vermin, thereby affecting my rental.

This was requested In the Condition Report dated 7/7/23.

2) The landlord’s wife viewed the house when she dropped by one day. She agreed that it needed a “deep clean” and witnessed the filthy stovetop, filters and knobs on the stove and the soap scum on the showers. She agreed that these needed to be attended to.

However, the landlord is refusing to have this done and is saying that the property was “professionally cleaned”. If that were the case, the Landlord’s wife would not have agreed that it had not been properly cleaned and that a deep clean should take place.

This was requested in the Condition Report dated 7/7/23.

3) The sliding doors on the closet in one of the bedrooms need to be fixed. This was requested on the Condition Report.

The Agent did an inspection of the property on 17/8/23 and was shown how the sliding doors did not run properly. However, she keeps insisting that they are fine. Finally it was agreed that it would be attended to. However, the handyman which the Landlord sent, overlooked taking care of this. The landlord has now refused to have these repaired.

The landlord is therefore in breach of his responsibilities to keep the property properly maintained.

This was requested In the Condition Report dated 7/7/23.

4) I have requested on several occasions to have a PLUMBER fix the running toilet. On several occasions this was ignored and the landlord’s handyman was sent instead. He was unable to fix the toilet and I have had to put up with a running toilet for weeks. This no doubt wilt have an impact on my water bill.

5) I have requested that screens be put on the double doors leading to the deck and also windows in the loungeroom. This has been refused. This means that the only air I can get into the loungeroom is through some louvres, which Is not satisfactory, I should be able to have screens on all the windows and the doors leading to the deck.

I am forced to keep the doors and windows closed so I don’t have mosquitos in the house. In view of the problem with the swamp area, I believe my request for screens is reasonable.

6) I have requested on a couple of occasions to be able to install a safety rail in the shower. I advised that my Home Care Package would pay for the rail and the installation and that the rail would remain with the property when I vacated. I cannot get confirmation from the Landlord to do this.

I have just had Covid and was not feeling well. I almost lost my balance in the shower. I advised the agent of this and asked again that I be allowed to instal the rail. I have still not had confirmation that the Landlord will allow this.

7) I have requested that the outside windows of 2 rooms be cleaned. This has been refused. This house is almost 3 meters off the ground (on stilts). There is no possible way I am able to clean the windows myself. I believe this is a reasonable request, I am only asking for the windows of 2 rooms to be cleaned, not the whole house.

This was mentioned In the Condition Report dated 7/7/23.

I have been advised by the Tenancy Advisory that the Landlord Is responsible for making any repairs referred to in the original condition report, (attached) and also other repairs to keep the property properly maintained.

Therefore, the Landlord is in breach of contract for failing and refusing to do necessary repairs and maintenance.

I therefore ask for an ORDER that all of the above repairs be attended to.

Section 44(1)(b) An Order that the rent payable is excessive due to the reduction or withdrawal of any goods, services or facilities provided with the residential premises.

Please see copy of email sent to the Landlord dated 8/9/23 (attached) setting out the reasons for this request.

This email was ignored by the Landlord.

Also, please see the information set out under Section 187 (1) (d) regarding compensation.

I therefore ask for an Order as set out above: namely:

1) Due to property not being ready for the start of the lease on 26/6/23, and the fact that the landlord trespassed on the property after the start of the lease without my knowledge or permission, that I not be charged any rent until I moved in on 27/7/23.

2) From 27/7/23 until the landlord fixes the serious safety and health hazard - the swamp situation and the area of debris, that I pay half rent i.e. $275 a week.

3) Even after the swamp area and debris are taken care of, the backyard, my privacy and security remain damaged. I therefore ask for an Order that I pay $410 a week for the remainder of the lease.

Section 187(1)(d) - I request an Order for compensation.

The property was not ready by 26/6/23, the start date of the lease.

When I picked up the key on 6/7/23:

1) I was advised that the glass in the ensuite needed to be replaced.

2) A tradesman arrived to replace the glass in the front door. I had not been advised of this, nor did I give permission for him to enter the premises In my absence. He knew nothing about repairing the glass in the ensuite.

3) The Landlord was still applying “mulch” to the gardens - I saw his vehicle on the property as I passed by on the way to pick up the key. I was advised that he would be doing this “over the next few days”.

4) I discovered that the backyard, which had been a beautiful green private oasis when I viewed the property on (apx 15/6//23) and agreed to lease it, had been decimated with a lot of the trees felled. This exposed a storm water pipe and a large amount of stagnant water lying in the “swamp” area, an obvious serious safety and health hazard. The landlord had used heavy equipment to simply push a lot of the stumps, roots and debris into the “swamp” area. Even Council commented that this would be a breeding ground for mosquitos. This also created a haven for snakes and vermin and, of course, an obvious eyesore as the deck of the house (one of the redeeming features of the property) overlooks this swamp. Not what I signed up for!

The landlord was obviously aware of the serious safety and health hazard but failed to advise me.

I believe It Is obvious that a lot of this demolition work took place after the start of my lease on 26/6/23.

I was advised by the agent by email dated 13/7/23 (attached) that the landlord “could” erect a “farm style fence” the next day. I immediately telephoned her and told her that obviously the landlord was just trying to cover himself (as I had pointed out that it was a safety and health hazard). I advised the agent that I did NOT want a fence, that that would not completely take care of the safety issue, that it would be another eyesore and that it would encourage a lot of weed growth around the bottom of the fence, which, no doubt, I would be expected to maintain!

When I moved into the property on 28/7/23, I discovered that this fence had been erected. This was AGAINST my wishes. This meant that the landlord had trespassed onto the property WITHOUT MY KNOWLEDGE OR PERMISSION to erect that fence, just to try to cover himself.

The landlord has now advised that this “swamp” is on the adjacent block which he also owns (I was never advised of this until recently) and so he feels that this doesn’t affect my rental. I totally disagree as my deck overlooks this swamp and I already have had mosquitos in the house and he refuses to put screens on the doors leading to the deck.

The landlord had also trespassed on my property when he was putting mulch on the garden beds, which should have been attended to prior to the start of my lease on 26/6/23.

ORDER: As the property was not ready for vacant possession at the start of the lease on 26/6/23, I believe the period from 26/7/23 up until 27/7/23 when I moved in, should be rent free.

THE SERIOUS SAFETY AND HEALTH HAZARD OF THE SWAMP NEEDS TO BE ERADICATED.

I ask for an ORDER that the Landlord pay to have the swamp area fixed so that It Is no longer a safety and health hazard, Also, all the fallen trees, stumps, debris, etc., should be removed at the Landlord’s expense.

I have been warned that the Landlord is known to deflberately delay things, so I would ask that this work be carried out within the next month.

I feel it fair that I pay half the rent (usually $550) i.e. $275 from the date 1 moved In 27/7/23 up until the safety and health hazard of the swamp area is completely taken care of.

Even after the swamp area is eradicated, it still remains that the backyard which was presented to me at the time I viewed the property, no longer exists. What I have now is a horrible backyard which seriously affects my privacy with the busy walkway next to the fence, also my safety with the graffiti area visited by undesirables at night and my peace and enjoyment of the property has been severely damaged.

I have been advised that the Landlord Is In breach, for not advising me of the safety and health hazard of this swamp.

I therefore ask for an ORDER that I should pay $410 a week rent for the remainder of the lease as the property was falsely represented to me and the ambiance and ability to enjoy the property as I should have been able to, has been destroyed.

So, in summary, I ask for the following orders regarding rent:

1) Due to property not being ready for the start of the least on 26/6/23, that I not be charged any rent until I moved in on 27/7/23,

2) From 27/7/23 until the landlord fixes the swamp situation and the area of debris, that I pay half rent i.e. $275 a week,

3) Even after swamp area and debris is taken care of, the backyard, my privacy and security remain damaged. I therefore ask for an order that I pay $410 for the remainder of the lease.

Due to my age, (I will turn 77 In a couple of months) and the extreme stress I have been under because of all the problems, my Doctor has advised against me going through the stress and upheaval of another move.

MEALS

Due to the filthy state of the stove and oven, I was forced to eat out almost every day.

The landlord’s wife dropped by while I was there on 7/7/23, and agreed, after inspecting the property, that it needed a “deep clean”, especially the stove, knobs on the stove, filters and oven and also the soap scum on the shower glass. She said she had been told by the agent that the tenants were coming back to clean. She agreed that obviously this did not happen. The agent obviously did not check the property after the tenants were supposed to have returned to clean it. The agent very begrudgingly arranged for a clean but it was not a deep clean and the filthy stovetop, knobs, filters and the soap scum are still there.

I have tried and tried to get this deep cleaning done but the landlord refuses to do it.

The cost of meals to date amounts to $897.94. I did not keep receipts as I was unaware that I would be able to claim this. However, I have been advised that I am able to claim It and, to retain my privacy, will make copies of my bank statement detailing these expenses available at the hearing.

ACCOMMODATION

I was Informed that I had to have the Condition Report back within 7 days from picking up the key. I was then forced to stay the night to finish this report the next day as I was living almost 3 ½ hours away at that time and I do not like to drive at night, I have now been advised by the Tenancy Advisory that I should have been allowed 7 days after I moved in to complete the report.

The cost of the CABIN was $90. See attached receipt.

DECK

Due to the swamp area and the mosquito problem, I am not able to use the deck which was one of the redeeming features of the property.

This is about ¼ of the size of the house. It measures 3 meters by the entire length of the house.

YARD

Due to the swamp area and the mosquito problem, I am not able to use the yard at all. After even the slightest amount of rain, the ground becomes soft and muddy.

STORAGE AREA UNDER THE HOUSE

This was listed in the advertisement for the rental. When I inspected the property, because It was on stilts, I enquired whether it flooded. I was told No. Later, I asked a different question, whether it was in a flood area. Again, I was told No. Later, after I signed the lease, I was told that the storage area was “not waterproof”. The agent therefore has deliberately misled me and not told me the whole truth of the situation.

My insurance has gone up $80 a month because of the property being in a flood zone, which I was not aware of.

I checked with several neighbours. The next door neighbour said that In April, 2022, after heavy rain, the water came up to his back fence. This meant that obviously the water came up to the same level on this property, which meant that the storage area would have had considerable water in it.

Early on, but after I had signed the lease, the rental agent acknowledged that in heavy rain the water “came half way up over the backyard”. Now she denies she said this.

The reason I am renting for 12 months is that I am building a new home in the new estate in Urunga. Therefore, the storage area under the house was an important feature, meaning I didn’t have to pay for extra storage.

I believe, due to the deliberate lies on the part of the rental agent, maybe on Instruction from the landlord, alternative storage should be made available to me to be paid for by either the rental agency or the landlord.

I checked with the local storage and was quoted $200 a month for an area 3 x 2 meters the storage area under the house is over 4 x 3 meters.

BOUNDARY

When I Inspected the property, It was presented as one block - the backyard was beautiful and green with lots of trees as “the boundary. No mention was made of another block. This has only come up after I have been trying for weeks to get the Landlord to do something.

I offered to meet the landlord at the property TWICE, to try to discuss the problem, however, he refused to meet with me. I also requested to meet with the owner of the real estate agency and also the Director. Both refused to meet with me.

As mentioned, the landlord erected a fence near the swamp, which I did not want and which does not take care of the safety Issue. I was advised by the agent by email on 13/7/23 and that the fence showed my area of responsibility for mowing. By email dated 28/8/23 I mentioned this and also asked if that meant that the fence was on the boundary between the 2 blocks. This was ignored.

HOWEVER, I now notice (from markers on the boundaries) that half of my backyard is actually on the adjacent block! I have advised the agent and landlord about this twice, advising that the landlord can’t have it both ways, trying to say that the swamp Is on the adjacent block and therefore does not affect my rental, and then on the other hand expecting me to pay for the mowing of half the backyard which is on the adjacent block.

This has been ignored by both the agent and the landlord.

I am charged $195 each time by my Home Care package Attached. The area which is on the adjacent block Is about ¼of the area which has to be mowed.

Therefore, I ask for an ORDER that the landlord contribute $49 a week for the mowing.

PRIVACY

The trees used to cover most of the side fence. However, now it Is almost completely open and there is a busy walkway the other side of the fence and now I have people looking Into my property as they walk buy, thereby destroying my privacy.

SECURITY

With the trees removed along the side fence, it is easier for someone to get over the fence. There is an area of graffiti, which means that undesirables meet at this area late at night. I don’t feel safe anymore.

MOVING EXPENSES

If I am forced to move, I ask for an Order that the landlord pay for all of my packing and moving expenses.

EXTREME STRESS, FRUSTRATION AND RETALIATION

I have requested to meet with the landlord on 2 occasions but he has refused. I have tried to meet with the owner of the real estate agency, he refused to meet with me and also refused to drive 2 minutes from his office to view the problem. He said I would have to deal with the rental agent and the Director. I tried to leave the Director out of it as I have bought a block of land through her. However, after it became impossible to deal with the rental agent, I asked the Director to meet with me. She abused me and refused to meet. She did say (before she hung up on me) that she would talk to the owner. I never heard from her about that.

I later received an abusive email from the Director dated 8/9/23 (attached) saying that I was threatening and intimidating their staff and landlord and demanding that my “abusive and harassing emails” cease and that I not contact the office again In relation to these problems. I replied by email dated 8/9/23 (attached) denying that my emails were abusive, (In fact they were replies to harassing emails from the rental agent to do things which I considered were her Job to attend to). I Informed the Director that as I was a client of the real estate agency she was In no position to demand that I not be able to contact them. She simply replied saying that she would leave it to the Tribunal.

This has resulted in EXTREME stress and frustration and anger as I have no one on my side. The Director did view the problem and was astonished by the amount of clearing which had taken place, saying “there has to be a story as to why all of this has happened”. Now, she refuses to acknowledge the problem.

The landlord has refused to do repairs, even one (a shower rail) which is a safety issue which I was going to have paid for out of my Home Care Package.

The backyard which was presented to me at the time of Inspection no longer exists. As the trees have been removed, this now affects my privacy and security. Therefore my enjoyment of the property has been severely damaged. I can no longer enjoy the deck because of the mosquitos and I have to keep the windows and doors in the living room closed because the landlord refuses to put on screens.

It is obvious that the landlord and the real estate agency are trying to make me leave. This is obvious retaliation. it has been mentioned in several emails that as I am unhappy, I can leave. This is a recurring theme, trying to get me to leave. They have allowed me out of the lease and a laughable $20 reduction in rent, but that doesn’t help, no other rentals suitable and I do not feel well enough now to move, the stress has become too much. I have just had Covid this last week and struggling to get over that.

I now have an incurable disease, Reynauds disease, which is caused by cold due to the floors not being insulated. in various areas of the house, (which is raised almost 3 meters) you can see through the floor boards to the earth below. In winter it is unbearably cold (hence me now having the Reynauds disease which is caused by cold and stress.) I don’t believe this comes under the description of “habitable”. Separate legal action will be taken for damages but I will be forced to continue to live with this condition.

Due to the extremely negative living conditions, I am now suffering depression and I am under the care of a psychologist.

I ask for an ORDER for compensation in the sum of $10,000.” (bold text in the original)

13. On 23 November 2023, the Tribunal relevantly made procedural directions for the hearing including for the lodgment and service of documents by the parties and the following notation:

“7 The issues to be determined on the next occasion are:

a. The tenant’s claim for the following repair orders:

(i) Rectification works to the “swamp area” to remove the water and debris and return privacy to the premises

(ii) Deep clean of the premises including the stove, shower and windows

(iii) Installation of screens on doors and windows

(iv) Install insulation in the floor boards

(v) Repair or replace stove due to knob falling off

b. The tenant’s claim for compensation for purchasing meals due to no working stove. The amount needs to be itemised by the tenant.

c. The tenant’s request for an order that the landlord permits the installation of a safety rail in the bathroom.

d. The tenant’s claim for rent reduction as follows:

(i) 1 month free rent for June 2023

(ii) 50% rent from July 2023 until the repairs are completed

(iii) maximum rent payable of $410 once repairs are completed until the end of the tenancy due to lack of privacy”

14. On 22 December 2023, Ms Bush lodged a bundle of documents with the Registry (the 22 December 2023 Bush documents).

15. On 18 January 2024, Mr Menzies lodged a bundle of documents with the Registry (the 18 January 2024 Menzies documents).

16. On 22 January 2024, Ms Bush lodged a document with the Registry setting out substituted issues (the 22 January 2024 Bush document).

17. On 31 January 2024, Ms Bush lodged a bundle of documents with the Registry (the 31 January 2024 Bush documents).

18. On 23 February 2024, Mr Menzies lodged a bundle of documents with the Registry (the 23 February 2024 Menzies documents).

19. On 1 March 2024, Ms Bush lodged a bundle of documents with the Registry (the 1 March 2024 Bush documents).

20. On 6 March 2024, the Tribunal relevantly:

1. made procedural directions for the hearing including the following notation:

“3 The Tribunal notes that the application cannot be further amended to include issues that were not in existence at the time the application was made.

The Tribunal notes also that the applicant has now lodged all the documents she wants to rely on.”

2. issued a Summons addressed to Trudy Menzies (Ms Menzies) requiring her attendance at the hearing on 17 May 2024 (the Bush summons).

21. On 25 March 2024, Mr Menzies lodged a document with the Registry (the 25 March 2024 Menzies document).

The hearing

22. On 17 May 2024, the hearing of the proceedings took place. Ms Bush represented herself. Ms Cleary represented Mr Menzies.

23. At the commencement of the hearing, I made the following an order pursuant to ss 45(1)(b)(i) and 58 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) granting leave to Ms Cleary to represent Mr Menzies on condition that Detize would not seek any costs as managing agent in representing him (the Menzies representation order).

24. Following the making of the Menzies representation order, Ms Bush applied to amend the Bush application to seek the following relief (the Bush amendment application):

“1. An Order that the swamp water and all the felled trees, weeds and debris be completely cleared up and rectified within 2 weeks from the hearing date set for 17/5/2024.

2. An Order that the out of control weeds covering most of the fence be poisoned and removed at the same time.

3. An Order that the fence be removed, at the same time, as it was erected against my wishes and without my permission and makes it impossible to maintain the area.

4. An Order that all of the knobs, the filters and the coil around the oven door be replaced and that the inside of the oven be completely cleaned out so there are no toxic fumes and that it be completely cleaned under the flue.

5. An Order that the shower glass be replaced as it has been confirmed by 2 cleaners that it has glass cancer and cannot be cleaned.

6. An Order that the floors of the property be insulated.

7. An Order that the floors be repaired where the previous “repair” has come away, causing a trip hazard.

8. An Order that screens be placed on all windows and doors, because of mosquitos from the swamp and also wasps.

9. An Order that I be allowed to have permanent safety rails installed in the ensuite, near the bathtub and near the 3 toilets.

10. An Order that the sliding doors in the 2nd bedroom (first on Left) be fixed and that the first handyman not be sent to my property again as he lied about the sliding doors, has caused damage which he did not admit to, so I do not trust him and don’t feel safe with him.

11. An Order that the windows be cleaned inside and outside.

12. An Order that the Landlord be responsible for the regular weeding of the garden beds because the promised mulch was not laid.

13. An Order that the bedroom window in the 2^nd bedroom (first on left) be fixed.

14. An Order that the shower grout be fixed in the ensuite.

15. An Order that the cracked glass in the ensuite be fixed and a privacy film applied.

16. An Order that I not pay rent from 28/6/2023 until I moved in on 28/7/2023 as vacant possession was not given.

17. An Order that from 28/7/2023, until the clearing up and rectification of the swamp and debris, the weeds on the fence and the removal of the fence is rectified, that I pay half rent i.e. $275 a week.

18. An Order that from the time the clearing up and rectification of the swamp, debris, weeds on fence and fence removal is fully completed, that I pay $410 per week for the remainder of the tenancy.

19. An Order that I be compensated for the cost of the cabin on 6/7/2023 in the sum of $90.

20. An Order that I be compensated for the cost of a portable oven in the sum of $135.

21. An Order that I be compensated for the cost of a portable fan in the sum of $99.

22. An Order that the Landlord compensate me for half of the cost of mowing to date, i.e. $98 each time, and continue to pay one half of the cost of mowing for the remainder of the tenancy.

23. An Order that I be fully compensated for my meals due to the filthy, unusable stove, amounting to $3096.32, up to early February when I purchased the portable oven.

24. An Order that alternative storage be provided and paid for by the landlord.

25. An Order for the sum of $15,000 for non-economic damages due to:

•   The deliberate and extreme false presentation of the property by the    Landlord and the agents

•   The extreme stress, constant frustration and continued intimidation and retaliation on the part of all parties.

•   The reduction or withdrawal of the goods, services or facilities as follows:

•   The withdrawal of the use/enjoyment of the deck which encompasses ¼ of the size of the house.

•   The withdrawal of adequate ventilation due to no screens and doors and windows having to be kept closed due to mosquitos.

•   The withdrawal of the use/enjoyment of the yard.

•   The withdrawal of the use of the clothesline.

•   The withdrawal of privacy which has been destroyed due to removal of numerous trees.

•   The withdrawal of security which has been severely affected due to undesirables meeting at the graffiti area allowing for easy access to my yard due to the removal of numerous trees.

•   Withdrawal of the use/enjoyment of the property as I have been forced to live in a filthy house with no proper cooking amenities, having to shower in someone else’s filth and overlooking a mosquito-ridden swamp, for 10 months.

•   Withdrawal of my right to have numerous repairs done.

•   Withdrawal of my right to communicate with the agent re. these repairs as she refuses to do so.

An Order that my rent be paid into the Tribunal until ALL issues have been satisfactorily attended to.”

25. Ms Cleary consented to the Bush amendment application to the extent that it contained the orders set out in the 22 January 2024 Bush document. Ms Bush and Ms Cleary respectively made submissions in support and in opposition to the Bush amendment application. I made an order allowing the Bush amendment application so far as paras 1, 4 except so far as the cleaning of the oven and flue, 6 to 12, 24 and 25 except for the last two dot points, otherwise dismissed the Bush amendment application, and gave oral reasons for my decision. As I inadvertently omitted to include paras 16 to 18, I have varied this order to also allow the Bush amendment application so far paras 16 to 18 except for the weeds on the fence and the removal of the fence.

26. Ms Bush relied on the following documents which were admitted into evidence without objection:

1. the 22 December 2023 Bush documents which were marked as exhibit A1;

2. the 31 January 2024 Bush documents which were marked as exhibit A2 and include her rebuttal of Mr Menzies’ statement of issues (the 31 January 2024 Bush rebuttal);

3. the 1 March 2024 Bush documents which were marked as exhibit A3.

27. Ms Bush also sought to tender documents numbered 5, 6, 7, 9, 10, 11, 12, 22, 23 and 24 in a bundle of documents which she provided at the hearing. Ms Cleary objected to the tender of these documents. I refused to admit these documents into evidence, marked the bundle of documents MFI1 and gave oral reasons for my decision.

28. Mr Menzies relied on the following documents which were admitted into evidence without objection:

1. the 18 January 2024 Menzies documents which were marked as exhibit R1 and include the following documents:

1. the statement of Ms Cleary (the 18 January 2024 Cleary statement);

2. the maintenance requests summary of C&P for the premises for the period from 13 June 2023 to 24 November 2023 (the C&P maintenance summary);

2. the 23 February 2024 Menzies documents which were marked as exhibit R2;

3. the 25 March 2024 Menzies document which was marked as exhibit R3.

29. Ms Cleary indicted that she did not wish to cross-examine Ms Bush.

30. Ms Bush indicted that she wished to call evidence from Ms Menzies, but could not do so as Ms Menzies was not in attendance at the hearing. When I asked her the nature of the evidence that she wished to call from Ms Menzies, Ms Bush answered that she wanted to challenge Ms Menzies’ version of events as to their interaction on 7 July 2023 in the undated signed statement (Ex A2, p 7). While I was satisfied that the Bush summons had been served on Ms Menzies in the manner specified in in r 13(2)(b)(ii) of the Civil and Administrative Tribunal Rules 2014 (NSW), I decided to take no action in respect of the failure of Ms Menzies to attend the hearing and gave oral reasons for my decision. I would not have permitted Ms Bush to have called Ms Menzies as a witness for the purpose of cross-examining her.

31. Ms Bush also indicted that she wished to cross-examine Ms Cleary. When I asked her the topics on which she wished to cross-examine Ms Cleary, Ms Bush answered that she wanted to find out why Mr Menzies had not responded to parts of her evidence. In the light of this answer, I refused to allow Ms Bush to cross-examine Ms Cleary and gave oral reasons for my decision.

32. Each of Ms Bush and Ms Cleary made oral submissions, and then Ms Bush made oral submissions in reply.

The issues for determination

33. As Ms Bush was self-represented, and she and Ms Cleary are not legal practitioners, I have been conscious of the duty in s 38(5)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) and the duty to provide practical assistance that may be appropriate in accordance with the principles in Jeray v Blue Mountains City Council [2024] NSWCATAP 66 (Jeray) at [13]-[15].

34. Having regard to s 38(5)(a) of the NCAT Act and the principles in Jeray at [13]-[15], the following issues arise for determination:

1. issue 1: whether the Tribunal has jurisdiction to determine the proceedings;

2. issue 2: whether Mr Menzies should be ordered to carry out repairs to the premises, and if so the rent payable under the tenancy agreement should be ordered to be paid into the Tribunal until Mr Menzies complies with the order;

3. issue 3: whether Ms Bush may install safety rails in the premises;

4. issue 4: whether Mr Menzies should be ordered to be responsible for the regular weeding of the garden beds;

5. issue 5: whether the rent payable under the tenancy agreement is excessive and if so the amount of the excessive rent;

6. issue 6: whether Mr Menzies should be ordered to provide and pay for alternative storage for Ms Bush;

7. issue 7: whether Mr Menzies should be ordered to pay compensation to Ms Bush.

Issue 1: whether the Tribunal has jurisdiction to determine the proceedings

35. I am satisfied that the Tribunal has jurisdiction to determine the proceedings pursuant to ss 28(1) and (2)(a) and 29(1)(a) of the NCAT Act as ss 44(1)(b), 65(1)(a) and (5), 68(1)(a) and 187(1)(d) of the RT Act enable the Tribunal to make decisions in relation to the proceedings. It follows that the functions of the Tribunal in relation to the RT Act have been allocated to the Consumer and Commercial Division pursuant to cl 3(1) of Sch 4 of the NCAT Act.

Issue 2: whether Mr Menzies should be ordered to carry out repairs to the premises, and if so the rent payable under the tenancy agreement should be ordered to be paid into the Tribunal until Mr Menzies complies with the order

Introduction

36. Ms Bush seeks an order under s 65(1)(a) of the RT Act in respect of the following items which I will consider in turn:

1. the swamp water and the felled trees, weeds and debris;

2. the filters of the rangehood, the knobs of the stove and the oven door seal;

3. the floors;

4. screens to the windows and doors;

5. the sliding closet doors in the second bedroom (first on left);

37. If Mr Menzies is ordered to carry out repairs to the premises, then Ms Bush seeks an order under s 65(5) of the RT Act that the rent payable under the tenancy agreement should be ordered to be paid into the Tribunal until Mr Menzies complies with the order.

38. The RT Act relevantly contains the following provisions with respect to the repair of the premises:

1. section 63:

63 Landlord’s general obligation

(1) A landlord must provide and maintain the residential premises in a reasonable state of repair, having regard to the age of, rent payable for and prospective life of the premises.

(2) A landlord’s obligation to provide and maintain the residential premises in a reasonable state of repair applies even though the tenant had notice of the state of disrepair before entering into occupation of the residential premises.

…

(4) This section is a term of every residential tenancy agreement.

2. section 65:

65 Tenants’ remedies for repairs—Tribunal orders

(1) Orders for which tenant may apply The Tribunal may, on application by a tenant, make any of the following orders—

(a) an order that the landlord carry out specified repairs,

…

(2) Orders for repairs The Tribunal may make an order that the landlord carry out specified repairs only if it determines that the landlord has breached the obligation under this Act to maintain the residential premises in a reasonable state of repair, having regard to the age of, rent payable for and prospective life of the premises.

(3) In deciding whether to make an order under this section, the Tribunal—

(a) must take into consideration the regulations, if any, made under subsection (6), and

(b) may take into consideration whether the landlord failed to act with reasonable diligence to have the repair carried out.

(3A) The Tribunal must not determine that a landlord has breached the obligation unless it is satisfied that the landlord had notice of the need for the repair or ought reasonably to have known of the need for the repair.

…

(5) Payment of rent into Tribunal The Tribunal may order that all or part of the rent payable under a residential tenancy agreement be paid into the Tribunal until an order under this section has been complied with.

(6) Guidelines relating to reasonable time for repairs The regulations may provide for guidelines relating to reasonable times within which repairs to, and maintenance of, residential premises required to be carried out by the landlord under the residential tenancy agreement, this Act or any other Act or law should be carried out.

3. section 190:

190 Applications relating to breaches of residential tenancy agreements

(1) A landlord or a tenant may apply to the Tribunal for an order in relation to a breach of a residential tenancy agreement within the period prescribed by the regulations after the landlord or tenant becomes aware of the breach or within such other period as may be prescribed by the regulations.

(2) An application may be made—

(a) during or after the end of a residential tenancy agreement, and

(b) whether or not a termination notice has been given or a termination order made.

…

39. The Residential Tenancies Regulation 2019 (NSW) (RT Regulation) relevantly:

1. contains no regulations made under s 65(6) of the RT Act providing guidelines relating to reasonable time for repairs to premises other than for smoke alarms;

2. in cl 39 specifies the times for making applications to the Tribunal:

39 Times for making applications to Tribunal—ss 44(2), 83(2)(a), 98(4), 115(3), 125(3), 134(3), 141(2), 175(3) and 190(1) of Act

…

(9) For the purposes of section 190(1) of the Act, the prescribed period is within 3 months after the applicant becomes aware of the breach.

40. While not raised by the parties, I am satisfied that Ms Bush so far as she seeks orders under s 65(1)(a) of the RT Act commenced the proceedings within the time specified in cl 39(9) of the RT Regulation.

41. Mr Menzies did not contend that he did not breach the obligation in s 63(1) of the RT Act with respect to the premises because he did not have notice of the need for the repair or ought not reasonably to have known of the need for the repair within s 63(3A) of the RT Act.

The swamp water and the felled trees, weeds and debris

The evidence of Ms Bush

42. The evidence of Ms Bush relevantly included the following documents:

1. the following notation made by her on the 7 July 2023 condition report (Ex A1, p 29):

“I was not told that trees were being removed at back which was one of the best features of the property – now exposed the drain + stagnant water – ruins my outlook

Back of property where stagnant smelly water is lying is dangerous if I had children visit – large pipe + water

All downed trees + rubbish need to be removed + area cleaned up”

2. the following notation made by her in the document emailed to C&P to be attached to the 7 July 2023 condition report (Ex A1, p 32):

“Both Shenniah and Tyler were at the property when I viewed it at their Open House. … Nothing whatsoever was mentioned about what was to be done to the backyard. … Since then, after I picked up the key and went to the property, I have learned the following:

1. One of the most redeeming features of the property - the beautiful backyard - no longer exists. In its place, a considerable portion of the beautiful backward was demolished, exposing a cesspool and a pipe which leads to nowhere and water coming out of it and lying on the property. This goes for quite a distance as I saw a duck swimming across the water further back. The ground around this was very wet and soft and smelly. The beautiful backyard and side, covering a lot of the fence along the railway, was one of the features of the property which I found very appealing. Now, I believe, it is a health hazard with the water lying there with nowhere to go, it will attract mosquitoes (which cause Ross River fever among other things) and it will continue to smell. This is also dangerous if my visitors had children who could get to this water. A dangerous, smelly, backyard which is now a health hazard, NOT WHATI SIGNED UP FOR!”

3. two coloured photographs of surface water in the area of the felled cockspur coral trees and other vegetation and an exposed storm water drain taken by her on 6 July 2023 (Ex A1, pp 71-72);

4. an aerial photograph of the premises and adjoining properties on which are marked the boundaries of four lots and in handwriting their Deposited Plan (DP) numbers: DP2/7338; DP3/7338; DP4/7338; DP5/7338 (the Bush aerial photograph) (Ex A1, p 95).

The evidence of Mr Menzies

43. The evidence of Mr Menzies relevantly included the following documents:

1. the 18 January 2024 Cleary statement (Ex R1, p 4):

“Ai. On Monday 23 May 2022 council sent a letter to the landlord identifying Coral trees on Lot 1 & Lot 3 known as 44-46 Fitzroy Street Urunga, which is the adjoining land to the leased lots 5 & 4 known as 48A Pilot Street Urunga.

Attachment # 1 - letter from council

Attachment # 2 - maps of property

Between the 21^st & 27^th June 2023 the landlord Mark Menzies cleared the coral tress on the adjoining block, as per council instructions. Mark opted to complete these works on the adjoining block whilst the property was vacant to minimize the disruption to the tenant/s.

…

iii. The tenant viewed the property on 8th June 2023, …”

2. the letter of the Council dated 23 May 2022 to him and Ms Menzies in their capacity as “Landowner/manager” of “Lot 1 DP575255 Part Lot 3 DP7338” with their postal addresses which are a different street to the postal address of the premises recorded in the tenancy agreement (the 23 May 2022 Council letter) (Ex R1, pp 7-9);

3. two aerial photographs of the premises and adjoining properties on which are marked the boundaries and the dimensions of four lots and their DP numbers: “1/575255”; “3/7338”; “4/7338”; “5/7338”. DP1/575255 is contiguous on one boundary to DP3/7338, which is contiguous on one boundary to DP4/7338, which is contiguous on one boundary to DP5/7338. The house is located within DP5/7338 and part of DP4/7338. The yard is located within DP5/7338 and part of each of DP4/7338 and DP3/7338. There are trees adjacent to the yard within each of DP4/7338 and DP3/7338, and DP5/7338 is wholly filled with trees (the Menzies aerial photographs) (Ex R1, pp 10-11);

4. a Google map of the premises and adjoining properties on which is marked their postal address and boundaries (the Google map) (Ex R1, p 12).

Conclusion

44. There may be a dispute between the parties as whether the land on which the felled cockspur coral trees and other vegetation are located is part of the premises. Mr Menzies contended that this land adjoins the premises and accordingly he has no liability for repairs. It is unclear whether Ms Bush contended that this land is part of the premises or adjoins the premises.

45. I infer from the fact that the 23 May 2022 Council letter is addressed to Mr Menzies and Ms Menzies in their capacity as “Landowner/manager” that they are the owners of the land in DP1/575255 and DP3/7338, and from the location of the house and yard within DP4/7338 and DP5/7338 when read with the tenancy agreement that Mr Menzies is the owner of the land in DP4/7338 and DP5/7338.

46. The evidence adduced by the parties as to the boundaries of the premises is unsatisfactory. There was no survey of the premises and/or information from the Council identifying the title references corresponding to its postal address. I do not accept the evidence of Ms Cleary that the premises are the land in DP4/7338 and DP3/7338. The position of Ms Bush as to the location of the boundaries of the premises by reference to the applicable DP numbers is unclear, and is compounded by the discrepancy as to the DP numbers for the land in DP2/7338 and DP1/575255 between the Bush aerial photograph and the Menzies aerial photographs.

47. I have been unable to ascertain the boundaries of the premises from the 23 May 2022 Council letter, the Bush aerial photograph, the Menzies aerial photographs and the Google map. In the absence of satisfactory evidence of the parties, I find that the boundaries of the premises are the boundaries of the mowed yard, and that the felled cockspur coral trees and other vegetation are not located within the premises.

48. I accept the evidence of Ms Cleary that Ms Bush inspected the premises on 8 June 2023 and the cockspur coral trees and other vegetation were cut down and left on the ground between 21 and 27 June 2023.

49. It follows that I am not satisfied that Mr Menzies had any obligation to Ms Bush under s 63(1) of the RT Act in relation to the state of the land adjoining the premises. If, contrary to my finding, the felled cockspur coral trees and other vegetation are located within the premises, then I would not have been satisfied that Ms Bush had established that their felling occurred after the commencement of the tenancy agreement on 28 June 2023. Further, even if Ms Bush had established that the cockspur coral trees and other vegetation are located within the premises and their felling occurred after the commencement of the tenancy agreement on 28 June 2023, I would not have been satisfied that I had power to order Mr Menzies carry out specific repairs within 65(1)(a) of the RT Act as the work carried out by him was of such a nature that the cockspur coral trees and other vegetation could not be repaired.

The filters of the rangehood, the knobs of the stove and the oven door seal

Introduction

50. There is an agreement between the parties that one of the knobs of the stove has a sleeve which is loose.

The evidence of Ms Bush

51. The evidence of Ms Bush relevantly included the following documents:

1. the following notation made by her on the 7 July 2023 condition report (Ex A1, p 27):

“oven not clean – needs to be cleaned in +out

inside oven not properly cleaned

filters not clean – need to be cleaned

knobs need to be cleaned

cloth around oven is filthy needs to be replaced”

2. the following notation made by her on the 7 July 2023 condition report (Ex A1, p 29):

“oven not in good repair”

3. a coloured photograph of the filters of the rangehood with the following caption (Ex A1, p74):

“This shows the disgusting filters, which look like they have never been cleaned. I believe these need to be replaced, as I doubt if they could be properly cleaned

The landlord’s wife witnessed these when she dropped by on 7/7/23. She agreed that the house, especially the complete stove/oven needed a “deep clean”.”

4. the same coloured photograph of the filters of the rangehood with the following caption which she emailed to Mr Menzies on 28 August 2023 at 11.27am as an attachment marked “2O23O828095607.jpg” (the first 28 August 2023 at 11.27am Bush email) (Ex A2, p26):

“Photograph of the filters for the stove. This was emailed to the landlord on 28/8/23.

It appears obvious that other filters were substituted in the photographs which appear in the report provided by Kern Kleen cleaners, in an attempt to hide the real condition of the filters.

A cleaner has just advised that the filters, knobs and seal need to be replaced, or the stove replaced.”

5. a coloured photograph of two knobs of the stove with the following caption (Ex A1, p75):

“This shows the filthy knobs which were very sticky and almost all of them came completely off. Some have been attached but the sleeve of this knob comes completely off - making it very difficult to use that burner, as I have a bad back and it means that whenever I want to adjust the gas I have to lean down to see it. I should be able to rely on the sleeve, which indicates and level of gas, to be intact.

I do not have a 5 burner stove as advertised. I have a 3 burner stove, which is still too filthy to use.”

6. the same coloured photograph of two knobs of the stove with the following caption which she emailed to Mr Menzies on 28 August 2023 at 11.27am as an attachment marked “20230828095655.jpg” (the second 28 August 2023 at 11.27am Bush email) (Ex A2, p27):

“Photograph of the knobs on the stove, showing the sleeve to one of the knobs, which is cracked and comes off completely. This was emailed to the landlord on 28/8/23. There was no response.

A cleaner has just provided me with a report the knobs, filters and seal need to be replaced, or the stove replaced.”

7. the letter of Aleisha Williams (Ms Williams), Business Manager, of Leisha’s X’tra Home Detailing dated 28 January 2024 to Ms Bush (the 28 January 2024 Williams letter) (Ex A2, p20) which relevantly provides:

“I am sending this letter to inform you of the Cleaning I was unable to complete.

…

As for the stove, oven and rangehood. I am unable to clean the buildup of grease off the stove knobs and broken knob sleeves, they will need to be replaced as well as the disintegrating rangehood filters.

The oven appears to be faulty, on inspection I have found that it does not heat adequately and efficiently. I do highly suggest this be replaced as soon as possible. In addition to this, the oven door seal has become thinned and frayed due to age, allowing heat to escape, forcing the oven to overcompensate for heat loss causing overheating and subsequently adding to the electricity bill.

The cost of the knobs to replace is $50.79 each. The oven door seal is an additional $144.80. This does not include postage. I have yet to find suitable filters for the rangehood. You may need to measure or take them in to your nearest electrical appliance store to replace with the correct size.”

The evidence of Mr Menzies

52. The evidence of Mr Menzies relevantly included the following documents:

1. the following notation made by C&P on the 7 July 2023 condition report (Ex R2, p 5):

“Emilia oven & stove - black staingin to base of oven – water run marks to internal oven door glass - no cracks or chips to glass excellent condition - clean externally y & internally – external stainless smeary”

2. the 18 January 2024 Cleary statement (Ex R1, p 4):

“Aii. As per the tenant’s request, on the 17th & 18th & 20th July 2023 Kerrie Egan from Kern Kleen completed a professional clean on the property, paying close attention to the items noted by the tenant on the ingoing condition report,

Attachment # 3 - cleaning report

Attachment # 4 - invoice

Attachment # 5 - workorder

…

v. The stove knobs do not fall off, there are 5 burners, 1 skirt around 1 knob is loose, it does not affect the use of the oven/stove/cooktop. It is aesthetic only.

B. The stove is working. During the 6 weekly inspection which took place 17^th August 2023 the tenant advised the stove was not working, however she had it switched off at the isolation wall switch. Once I turned the isolation switch on, I showed the tenant the stove and cooktop work fine. The tenant then went on to say, “the stove is too dirty to use” and “she will not cook on it”. We had the stove (and property) professionally cleaned by Kerrie Kleen 17th, 18th & 20th July 2023 as previously requested by tenant.

Attachment # 9 - photos of stove/oven/cooktop/rangehood”

3. the letter of Kerry Egan (Ms Egan) who carries on business under the name Kerry Kleen dated 23 July 2023 to Ms Cleary (the 23 July 2023 Egan letter) (Ex R1, p 13):

“The oven was clean. The cleaning wasn’t fully executed properly there some marks remaining that hadn’t been scrubbed off but there was no greasy fat residue inside.

The rangehood filters had bugs in it, on the internal side. That have come down the flue.”

4. four coloured photographs of the filters of the rangehood, the stove and the oven taken by Kerry Kleen during the cleaning on 17, 18 and 20 July 2023 (the Kerry Kleen photographs) (Ex R1, pp 27-29).

Conclusion

53. I infer from the photograph references “20230828095607.jpg” and “20230828095655.jpg” that the coloured photographs of the filters and oven relied on by Ms Bush were taken on 28 August 2023. Both these photographs and the photograph taken by Kerry Kleen during the cleaning on 17, 18 and 20 July 2023 depict discolouring of the filters.

54. Ms Williams does not record in the 28 January 2024 Williams letter when she cleaned the premises. I infer from the caption for the coloured photograph of the filters of the rangehood in the first 28 August 2023 at 11.27am Bush email and the caption for the coloured photograph of two knobs of the stove in the second 28 August 2023 at 11.27am Bush email when read with the contents of the 28 January 2024 Williams letter that Ms Williams cleaned the premises on or shortly before 28 August 2023.

55. While I am satisfied from the coloured photograph attached the first 28 August 2023 at 11.27am Bush email and the Kerry Kleen photographs that the filters of the rangehood are discoloured, I am not satisfied that Ms Bush has established that Mr Menzies has breached his obligation under s 63(1) of the RT Act by reason that they are not functioning or disintegrating. I do not accept her contention that information provided by Ms Egan in the 23 July 2023 Egan letter is inaccurate. It follows that Ms Bush is not entitled to an order under s 65(1)(a) of the RT Act that Mr Menzies carry out repairs to the filters of the rangehood.

56. As one of the knobs of the stove has a sleeve which is loose, I am satisfied Mr Menzies has breached his obligation under s 63(1) of the RT Act and that this knob needs to be repaired. Otherwise, I am not satisfied that Ms Bush has established that Mr Menzies has breached his obligation under s 63(1) of the RT Act by reason that the other knobs of the stove are defective. It follows that Ms Bush is entitled to an order under s 65(1)(a) of the RT Act that Mr Menzies carry out repairs to the one knob of the stove which has a sleeve which is loose.

53. I accept the evidence of Ms Williams in the 28 January 2024 Williams letter that the oven door seal (which Ms Bush describes as “the coil around the oven door”) has become thinned and frayed due to age, allowing heat to escape. Mr Menzies adduced no contradictory evidence. I find that the oven door seal is not working properly and am satisfied Mr Menzies has breached his obligation under s 63(1) of the RT Act. It follows that Ms Bush is entitled to an order under s 65(1)(a) of the RT Act that Mr Menzies carry out repairs to the oven door seal.

The floors

58. It is unnecessary to set out the evidence of the parties as there is no dispute between them that there is no insulation under the floorboards.

59. Ms Cleary conceded that Mr Menzies is liable to repair the floorboards in the loungeroom approximately 1.5 metres from the main bedroom where the previous “repair” has come away. In the light of this concession, I am satisfied that Ms Bush is entitled to an order under s 65(1)(a) of the RT Act that Mr Menzies carry out repairs to the floorboards in the loungeroom approximately 1.5 metres from the main bedroom where the previous “repair” has come away.

60. Ms Bush adduced no evidence that dwellings of the same age which are elevated above the surface of the ground in the same local government area normally have insulated floorboards. In the absence of any such evidence, I am not satisfied that Ms Bush has established that Mr Menzies has breached his obligation under s 63(1) of the RT Act by reason that the floorboards are not insulated.

61. It follows that I am not satisfied that Ms Bush has established that she is entitled to an order under s 65(1)(a) of the RT Act that Mr Menzies carry out repairs by the installation of insulation under the floorboards. Ms Bush is not seeking an order for the carrying out of specified repairs within s 65(1)(a) of the RT Act, but rather an order for the improvement of the premises and has not demonstrated that the Tribunal has power under the RT Act to make any such order.

Screens to the windows and doors

62. It is unnecessary to set out the evidence of the parties as there is no dispute between them parties that there are some windows without screens and some doors without screens.

63. Ms Bush adduced no evidence that dwellings of the same age in the same local government area normally have screens on all the windows and doors. In the absence of any such evidence, I am not satisfied that Ms Bush has established that Mr Menzies has breached his obligation under s 63(1) of the RT Act by reason that there are some windows without screens and some doors without screens.

64. It follows that I am not satisfied that Ms Bush has established that she is entitled to an order under s 65(1)(a) of the RT Act that Mr Menzies carry out repairs by the installation of screens to the windows without screens and the doors without screens. Ms Bush is not seeking an order for the carrying out of specified repairs within s 65(1)(a) of the RT Act, but rather an order for the improvement of the premises and has not demonstrated that the Tribunal has power under the RT Act to make any such order.

The sliding closet doors in the second bedroom

The evidence of Ms Bush

65. The evidence of Ms Bush relevantly included the following documents:

1. the following notation made by her on the 7 July 2023 condition report (Ex A1, p 23):

“sliding door on R (closet) doesn’t run smoothly”

2. the details she provided in the 22 December 2023 Bush documents (the 22 December 2023 sliding closet doors details) (Ex A1, p 53):

“6) THE SLIDING CLOSET DOORS IN THE 2ND BEDROOM ( FIRST ON THE LEFT) NEED TO BE FIXED

•   The agent did an inspection on the 17/8/23. She was shown how the closet doors did not work properly, there was a loud clunking sound when they were opened or closed and 1 (sic) was stiff and hard to close.

•   It was agreed at one point that they would be fixed.

•   The first handyman came, I showed him and he said he would fix them after he did another job. He left without fixing them. He then said that they worked fine. I believe he couldn’t fix them so that was the easy way out.

•   The agent then said also that they worked fine!

•   The second handyman came, much more competent, and he fixed them! This proved that the agent and the first handyman were lying!

•   The first handyman also damaged part of the blind and also the window sills but did not acknowledge it, leaving it for me to take the blame.

•   The second handyman said the track was out of alignment and even though he fixed them then, unfortunately, they need to be fixed again.

•   I therefore ask for an Order that the sliding doors in the 2nd bedroom       be fixed. I also ask for an Order that the first handyman not be sent to my          property again. I do not trust him and I do not feel safe with him.”

3. her commentary on the C&P maintenance summary in the 31 January 2024 Bush rebuttal (Ex A2, pp 11-12);

4. the email of Ms Bush sent to Ms Cleary on 16 October 2023 (the 16 October 2023 Bush email) (Ex A2, pp 41-42) which relevantly provides:

“I do NOT want the useless handyman who came to put locks on the windows and supposedly fix the toilet which he never did. I told him the sliding doors in the BR needed to be done and he said he would do them. However, he forgot. Then, the landlord decided that he wouldn’t do this job which was mentioned as far back as the Condition Report!”

The evidence of Mr Menzies

66. The evidence of Mr Menzies relevantly included the following documents:

1. the 18 January 2024 Cleary statement (Ex R1, p 5):

“Dii. All repairs the tenant has requested have been completed, refer maintenance list. The tenant is now not asking for repairs but improvements.”

2. item 1537 in the C&P maintenance summary which records the built in door with the status “completed” on 21 September 2023 (Ex R1, p 47);

3. the email of Ms Cleary sent to Ms Bush on 27 October 2023 (the 27 October 2023 Cleary email) (Ex R1, p 32) which relevantly provides:

“…

As previously advised.

- Sliding doors in bedroom - These doors work fine, open & close on inspection, no maintenance work will be carried out.

…”

Conclusion

67. I accept the evidence of Ms Bush that the sliding closet doors in the second bedroom do not run smoothly. I also accept the evidence of Ms Bush in the 16 October 2023 Bush email that these sliding doors were not repaired on or shortly before 21 September 2023. I further accept the evidence of Ms Bush in the 22 December 2023 sliding closet doors details that the repairs undertaken by the second handyman did not effectively repair these sliding doors. In circumstances where Mr Menzies adduced no evidence by the handyman, I do not accept the evidence of Ms Cleary in the 18 January 2024 Cleary statement that this repair has been carried out.

68. I am satisfied Mr Menzies has breached his obligation under s 63(1) of the RT Act by reason that the sliding closet doors in the second bedroom do not operate properly. It follows that I am satisfied that Ms Bush has established that she is entitled to an order under s 65(1)(a) of the RT Act that Mr Menzies carry out repairs to these sliding doors.

Whether the rent payable under the tenancy agreement should be ordered to be paid into the Tribunal until Mr Menzies complies with the order

69. While I am satisfied that Ms Bush has established that she is entitled to an order that Mr Menzies carry out specified repairs within s 65(1)(a) of the RT Act in relation to the floorboards in the loungeroom approximately 1.5 metres from the main bedroom where the previous “repair” has come away, the knob of the stove with a detached sleeve, the oven door seal and the sliding closet door in the second bedroom, I am not satisfied that Mr Menzies will not comply with an order that these repairs are carried out within a reasonable period which I consider to be 20 business days. It follows that I am not satisfied that Ms Bush has established that she is entitled to an order under s 65(5) of the RT Act that the rent payable under the tenancy agreement should be paid into the Tribunal until Mr Menzies carries out these repairs. Except to the extent of the order for the carrying out of these repairs, the proceedings so far as Ms Bush seeks orders in relation to the carrying out of repairs and the payment of rent pending the carrying out of these repairs should be dismissed.

Issue 3: whether Ms Bush may install safety rails in the premises

Introduction

70. In her oral submissions Ms Bush stated that she wants permission to install safety rails for each of the toilet and shower in the ensuite, the toilet in the laundry, and the bath in the main bathroom.

71. The dispute between the parties is that Ms Bush asserts that she has the right to install permanent safety rails, while Mr Menzies has refused to agree to the installation of any safety rails.

72. The RT Act relevantly contains the following provisions with respect to alterations to residential premises:

1. section 66:

66 Tenant must not make alterations to premises without consent

(1) A tenant must not, without the landlord’s written consent or unless the residential tenancy agreement otherwise permits, install or cause to be installed a fixture or make or cause to be made any renovation, alteration or addition to the residential premises.

(2) A landlord must not unreasonably withhold consent to a fixture, or to an alteration, addition or renovation that is of a minor nature.

(2A) The regulations may make provision for or with respect to the following—

(a) the kinds of fixtures, or alterations, additions or renovations that are of a minor nature in relation to which it would be unreasonable for a landlord to withhold consent,

(b) the circumstances in which the giving of consent by the landlord to the fixture, alteration, addition or renovation may be conditional on the fixture only being installed, or the alteration, addition or renovation only being carried out, by a person appropriately qualified to install a fixture, or carry out alterations, additions or renovations, of that kind.

(3) A landlord may withhold consent to any other action by the tenant that is permitted under this section whether or not it is reasonable to do so.

(4) A fixture installed by or on behalf of the tenant, or any renovation, alteration or addition to the residential premises by or on behalf of the tenant, is to be at the cost of the tenant, unless the landlord otherwise agrees.

(5) This section is a term of every residential tenancy agreement.

2. section 68:

68 Tenants’ remedies for alterations

(1) The Tribunal may, on application by a tenant, make any of the following orders, if the landlord fails to consent—

(a) an order that the tenant may install a fixture or make a renovation, alteration or addition to the residential premises,

(b) an order that the tenant is entitled to remove a fixture installed by the tenant.

(2) The Tribunal may order that the tenant may install a fixture or make a renovation, alteration or addition to the residential premises only if it is satisfied—

(a) that the landlord’s failure to give consent is unreasonable, and

(b) if the consent is to a renovation, alteration or addition, that it is of a minor nature.

(3) The Tribunal may determine that a landlord’s failure to consent is reasonable in any of the following circumstances (but is not limited to those circumstances for such a determination)—

(a) if the work involves structural changes,

(b) if the work involves work that would not be reasonably capable of rectification, repair or removal,

(c) if the work involves internal or external painting of the residential premises,

(d) if the work is prohibited under any other law,

(e) if the work is not consistent with the nature of the property.

73. Clause 22 of the RT Regulation relevantly makes provision with respect to the matters specified in s 66(2A) of the RT Act:

22 Fixtures or alterations, additions or renovations to residential premises—s 66(2A) of Act

(1) For the purposes of section 66(2A)(a) of the Act, the following are kinds of fixtures or alterations, additions or renovations of a minor nature in relation to which it would be unreasonable for a landlord to withhold consent—

…

(h) installing hand-held shower heads or lever-style taps for the purpose of assisting elderly or disabled people,

…

(2) For the purposes of section 66(2A)(b) of the Act, a fixture, or alteration, addition or renovation specified in subclause (1)(h) or (j) may be conditional on the fixture only being installed, or the alteration, addition or renovation only being carried out, by a person appropriately qualified to install a fixture, or carry out alterations, additions or renovations, of that kind.

…

The evidence of Ms Bush

74. The evidence of Ms Bush relevantly included the following documents:

1. the email of Ms Cleary sent to her on 31 October 2023 (the 31 October 2023 Cleary email) (Ex A2, p 28) which relevantly provides:

“…

I have met with the landlord and can confirm the following.

…

- As per my previous emails, the landlord has advised he does not want a permanent grab rail installed in the shower as this could compromise the waterproofing. The landlord has also advised that he and his wife will be moving into the property down the track, and do not want a grab rail in their shower. Again, our recommendation is to contact home care for alternatives.

…”

2. the 31 January 2024 Bush rebuttal (Ex A2, p 19) which relevantly provides:

“I mentioned that I would like a rail installed in the shower in the ensuite, to prevent falls. It would be installed and paid for by my Home Care Package and would obviously stay with the property when I vacate.

This was in AUGUST ‘23, and still has not been able to be installed.

I have advised her since then that I have had almost 3 falls.”

The evidence of Mr Menzies

75. The evidence of Mr Menzies relevantly included the following documents:

1. the 18 January 2024 Cleary statement (Ex R1, p 5):

“C. It has been recommended to the tenant and the tenant’s home care provider that she install suction grab rails or utilize a shower chair, that can be removed at the end of her tenancy and not compromise the waterproofing. The property was viewed without grab rails.”

2. the email of Ms Cleary sent to Ms Bush on 13 October 2023 (the 13 October 2023 Cleary email) (Ex R1, p 31) which relevantly provides:

“…

With regards to the grab rail in the shower, the landlord is concerned about the installation of this compromising the waterproofing.

Have you considered a suction grab rail? As this won’t damage the tiles or membrane and can be removed at the end of your lease.”

3. the email of Amelia Bolt (Ms Bolt), Nursing and Home Care Package Program Manager of Carexcell Community Care Pty Ltd, sent to Ms Cleary and Ms Bush on 28 November 2023 (Ex R1, p 38) to which was attached the letter of Ms Bolt dated 28 November 2023 (the 28 November 2023 Bolt letter) (Ex R1, p 39) which relevantly provides:

“Mrs Beverley Bush who resides at the above address is currently in receipt of a level 3 Home Care Package. Carexcell Community Care is the provider of this package and aims to support Mrs Bush to remain safe and Independent in her home.

It has come to the attention of Carexcell that the home currently has no grab rails in the bathroom or toilet. Beverley suffers from aged related mobility and balance issues and I would like to request the installation of grab rails in the toilet and bathroom to ensure Beverley is able to safely conduct her activities of daily living and minimise her risk of falls.

I understand the option of a suction rail has been offered in previous conversations between Beverley and the agent/owner of the property. However, I strongly discourage this option as suction rails are not reliable and have the potential to increase her risk of falling and sustaining serious injuries.

The cost of supply and installation of grab rails would be paid for from Beverley’s Home Care Package, installed by a licensed builder and would remain in the property when she vacates.

Carexcell requests permission to proceed with supply and installation of grab rails in the bathroom and toilet of [address omitted], Urunga NSW, 2450 to ensure Beverleys safety and independence are supported.

Conclusion

76. I am not satisfied that Mr Menzies has established that the installation of safety rails (which Ms Cleary has described as “grab rails”) in the shower would compromise the waterproofing in the shower. Without specific evidence I do not accept that a shower would contain waterproofing at the height at which safety rails would be installed.

77. I accept the evidence of Ms Bolt in the 28 November 2023 Bolt letter that the installation of safety rails in the bathroom and toilet of the premises is necessary for the safety and independence of Ms Bush. In the light of this evidence, I am satisfied that I should exercise the discretion under s 68(1)(a) of the RT Act to make an order to permit Ms Bush to instal safety rails for each of the toilet and shower in the ensuite, the toilet in the laundry, and the bath in the main bathroom.

78. I satisfied that the failure of Mr Menzies to consent to the installation of safety rails for each of the toilet and shower in the ensuite, the toilet in the laundry, and the bath in the main bathroom has been unreasonable within s 68(2)(a) of the RT Act because there is no evidence that any of the circumstances specified in s 68(3) of the RT Act or any other relevant circumstances apply.

79. Safety rails for the purpose of assisting elderly or disabled people are not specified in cl 22(1) of the RT Regulation as being a fixture or alteration of a minor nature in relation to which it would be unreasonable for a landlord to withhold consent. Nonetheless, I am satisfied that the installation of safety rails for each of the toilet and shower in the ensuite, the toilet in the laundry, and the bath in the main bathroom is an alteration which is of a minor nature within s 68(2)(b) of the RT Act where waterproofing will not be compromised.

80. I note the evidence of Ms Bolt in the 28 November 2023 Bolt letter that the safety rails will be installed by a licensed builder. Safety rails are sufficiently analogous to hand-held shower heads or lever-style taps within cl 22(1)(h) of the RT Regulation that I have decided to make the order under s 68(1)(a) of the RT Act conditional on the safety rails being installed by a licensed builder.

81. While I note the evidence of Ms Bolt in the 28 November 2023 Bolt letter that the safety rails would remain in the premises when Ms Bush vacates, as I am not satisfied that the Tribunal has power under the RT Act to make any such order, the proceedings so far as Ms Bush seeks an order for the permanent installation of safety rails should be dismissed. The question of whether any installed safety rails can remain will need to be determined at that time of the termination of the tenancy agreement having regard to its terms and the provisions of the RT Act.

Issue 4: whether Mr Menzies should be ordered to be responsible for the regular weeding of the garden beds

Introduction

82. The dispute between the parties is that Ms Bush asserts that Mr Menzies should be responsible for the regular weeding of the garden, while Mr Menzies assets that under the terms of the tenancy agreement Ms Bush has this responsibility.

The evidence of Ms Bush

83. The evidence of Ms Bush relevantly included the following documents:

1. the following notation made by her on the 7 July 2023 condition report (Ex A1, p 28):

“Chip bark needs to be applied instead of dried grass (will have seeds in it)”

2. a coloured photograph of part of a garden bed adjacent to a paling fence with the following caption (Ex A1, p91):

“Dried grass on beds. Weeds”

3. the email of Ms Bush sent to Ms Cleary on 18 January 2024 (Ex A2, p 63) which relevantly provides:

“As I have mentioned on numerous occasions, bark mulch was NOT applied to the garden beds, as noted in the Condition Report. You said that the tenants said they applied some bark mulch. I checked the beds where you pointed, and there was NO bark mulch there.

112. I am not satisfied that Ms Bush is entitled to an order under s 187(1)(d) of the RT Act that Mr Menzies pay her compensation of $90.00 for her accommodation on 6 July 2023 because there was no breach by him in relation to the ingoing condition report which had been provided to her on 27 June 2023. Ms Bush took possession of the premises on 6 July 2023 when she collected the keys. Pursuant to s 29(3) of the RT Act she had seven days to return the ingoing condition report to Mr Menzies or C&P. Her decision to stay at Urunga Waters Tourist Park on 6 July 2023 was not occasioned by any breach of the tenancy agreement by Mr Menzies. It follows that the proceedings so far as Ms Bush seeks an order that Mr Menzies should pay her compensation for her expenditure on accommodation on 6 July 2023 should be dismissed.

The claim for compensation for electricity used between 17 and 27 July 2023

The evidence of Ms Bush

114. The evidence of Ms Bush is the email of Alinta Energy sent to her on 8 December 2023 recoding that the total kwh consumed between 17 July 2023 and 27 July 2023 were 13 kwhs, and the handwritten notation of “$10.92” thereon by Ms Bush (the 8 December 2023 Alinta email) (Ex A1, p 70).

The evidence of Mr Menzies

115. Mr Menzies adduced no evidence in relation to this claim.

Conclusion

116. I accept the evidence of Ms Bush in the 8 December 2023 Alinta email that electricity for the premises was used between 17 and 27 July 2023 in respect of which she incurred a cost of $10.92. I infer that this electricity was used in connection with the erection of the wire fence between 13 July 2023 and 21 July 2023 as set out above. It follows that Ms Bush is entitled to an order under s 187(1)(d) of the RT Act that Mr Menzies pay her compensation of $10.92.

The claim for compensation for non-economic loss

The reasons for non-economic loss claimed by Ms Bush

117. Ms Bush contends that she is entitled to compensation for the following reasons:

1. the deliberate and extreme false presentation of the premises by Mr Menzies and C&P;

2. the extreme stress, constant frustration and continued intimidation and retaliation on the part of “all parties”;

3. the reduction or withdrawal of the following goods, services or facilities:

1. the deck;

2. adequate ventilation;

3. the use/enjoyment of the yard;

4. the use of the clothesline;

5. privacy which has been destroyed and security which has been severely affected due to removal of numerous trees;

6. the use/enjoyment of the premises as she has been forced to live in a filthy house with no proper cooking amenities, having to shower in someone else’s filth and overlooking a mosquito-ridden swamp, for 10 months.

The evidence of Ms Bush

118. It is unnecessary to set out all the relevant evidence of Ms Bush. In addition to the documents set out for issues 2 and 5 above I have relevantly selected the following documents:

1. the report of Dr Mel Huggins (Dr Huggins), a general practitioner, dated 15 November 2023 (the 15 November 2023 Huggins report) (Ex A1, p 128):

“Thank you for seeing BEVERLEY. Bev is a lovely 76 y.o. female who has been under my care since July 2023 when she relocated to the area from Tea Gardens 8ev relocated in the context of awaiting for her permanent residence which is being completed within the new development on the Old Pacific Highway. Since her relocatIon, Bev has reported significant anxiety and stress related to her current rental situation. Bev reports that she has had worsening anxiety, stress and poor sleep due to the reported lack of reasonable living conditions related to reported poor insulation and inadequate ventilation. Additionally, 8ev reports that there is stagnant water which attracts mosqitoes. Bev reports concerns about Ross River fever which has been reported in the community. I have referred Bev to a psychologist to assist with management of her stress.

I have recently diagnosed 8ev with Raynaud phenomenon, which results in pain and spasm of the vessels in her hands. This is triggered by both cold air and stress. This has resulted in a requirement for medication management.

I support Bev’s application to the tribunal for review and reconciliation of these issues.”

2. the report of Lynda Melville (Ms Melville), a clinical psychologist, dated 15 November 2023 (the 15 November 2023 Melville report) (Ex A1, p 129):

“Mrs Beverley Bush was referred by her treating general practitioner, Dr Mel Huggins, at Urunga Medical Centre for psychological counselling in relation to heightened anxiety and stress. The onset of mental health issues has been significantly related to difficulties in relation to the rental property and the lack of responsiveness to her requests for repairs and modifications on the property.”

3. the email of Ms Cleary sent to Ms Bush on 22 January 2024 (the 22 January 2024 Cleary email) (Ex A2, p 29) which relevantly provides:

“You were shown the boundary at the time of your initial inspection and then again during the 6-weekly inspection, nothing has changed, kindly maintain the property you lease as per the residential tenancy agreement. Attached again for your review, are ingoing photos of the gardens taken the day before your lease commenced.

If you are still unsure of your responsibilities, please refer to your Residential Tenancy Agreement conditions page 11, section 59.6. (section attached)

As per managements instructions, due to the ongoing harassment from you, I am to only respond to maintenance issues relating directly to the property and those we have not previously addressed. Again, I will take this time to remind you, you are welcome to break your lease at any time, without penalty or notice.”

4. the email of Ms Bush sent to Ms Cleary on 29 January 2024 in response to the 22 January 2024 Cleary email (the 29 January 2024 Bush email) (Ex A2, p 30) which relevantly provides:

“I cannot believe that you are still clinging to the fallacy that the boundary which I was shown back then is the real boundary, after you have been given a copy of the Council map, showing that the fence is about ¾ of the way up the "adjacent" block. Therefore it should not be my responsibility to pay to have it mowed. However, I have to keep it up to keep the property in some form of control.

How dare you say "if I'm unsure of my responsibilities" you seem to be the one who is not sure of my responsibilities.

I am not harassing you, I believe it is the other way around. You will not answer emails so I am forced to send another email going over the same information, again and again, only to be ignored again.

You keep putting on the bottom of every email "you are welcome to break your lease at any time...." A person only needs to be told that once.

I find it to be harassing to have you put this in every email. I would like it to stop.

You say "a per management instructions, due to the ongoing harassment........ that you will only respond to maintenance issues relating directly to the property and those we have not previously addressed"

Would this be the same management, Grant, the owner of the office who has now refused to attend the property on 3 occasions to view the extreme problem of the swamp which was deliberately hidden from me at the time I inspected the property and who has refused to have anything to do with this serious matter at all?

Or would it be the Director, Andree, who has refused to attend the property to check the filth which I complained about and who also refused to arrange a meeting with Grant to come and try to discuss a solution to the many problems.

Is it that same management?? Is that "management" aware that you knew that the shower glass had glass cancer and could not be restored BEFORE I MOVED IN and yet you have deliberately kept that information from me for 6 months, while I've been forced to shower in that filth?

I have every reason to be extremely upset about that.

Again, this must be about the 10^th time I'm having to bring this up, the weeds, which were over 9' high were supposed to be cleared "by the holidays or sooner", a small amount were removed on 10^th January and nothing since. You refuse to respond.

I am a tenant of Cardow and partners and as such, I have a right to enquire about anything regarding my rental, and

I have every right to keep contacting you if you ignore my emails.”

The evidence of Mr Menzies

119. It is unnecessary to set out all the relevant evidence of Mr Menzies. In addition to the documents set out for issues 2 and 5 above, I have relevantly selected the following documents as typical of a fair larger volume of documents:

1. the 18 January 2024 Cleary statement (Ex R1, p 6):

“F. Since the tenant commenced her lease on the 28 June 2023 our office has received 85 emails from her, some threatening and defamatory, noting that within her communications, she is speaking about our agency with malicious intent. We have been contacted by multiple local businesses to advise us the tenant has been slandering our business.”

2. the email of Ms Bush sent to Mr Andree Cardow on 26 November 2023 at 9.41pm (the 26 November 2023 at 9.41pm Bush email) (Ex R2, pp 64-65) which relevantly provides:

“I am contacting you in relation to your behaviour a couple of days ago when you gave me that dirty, smug look as you were crossing the road. Over the top. Very unprofessional. I’ve have enough of your intimidation and retaliation and that act, in front of other people, was the last straw!

…

Due to the CONSTANT intimidation and retaliation I have experienced, by Rachel, Grant and yourself as the Director of the company, I have had enough. I will give you this opportunity - and Grant - to apologise for your behaviour. You have constantly defended Rachel, even in view of evidence of how dirty the rental was, saying things like “the landlord doesn’t have to clean the property”, “Bev, it’s obviously not up to YOUR standard”, trying to make out that I was being too “fussy”, trying to convince me that the shower soap scum was due to fluoride in the water causing the problem, what rubbish. Photos of the filth have been sent to Grant, but have been ignored. Not good enough.

I don’t expect to be treated so rudely in public by you or anyone associated with Cardow, ever again.”

3. the email of Mr Andree Cardow sent to Ms Bush on 26 November 2023 at 9.45pm in response to the 26 November 2023 at 9.41pm Bush email (the 26 November 2023 at 9.45pm Andree Cardow email) (Ex R2, p 64) which relevantly provides:

“This is now outside of work.

I have no idea what you are talking about but assuming when I was crossing the pedestrian crossing on Friday...minding my own business!

Unless these matters relate to work, stop messaging and harassing me!!”

4. the email of Ms Bush sent to Mr Andree Cardow on 26 November 2023 at 9.58pm in response to the 26 November 2023 at 9.45pm Andree Cardow email (the 26 November 2023 at 9.58pm Bush email) (Ex R2, p 64) which relevantly provides:

“You know exactly what I was talking about! You are the one who took your behaviour outside of work.

I have never contacted you about anything outside of work before.

So your request that "unless these matters relate to work, stop messaging and harassing me" is ridiculous. Even when it WAS work related, and Grant said that I was to deal with you or Rachel regarding the swamp, you, as the Director of the company, have refused to even meet to discuss a solution. The offer of a meeting still stands.”

The submissions of Ms Bush

120. The submissions of Ms Bush are relevantly set out in the section of the Bush application setting out the reasons for the orders claimed by her. It is unnecessary to repeat them.

The submissions of Mr Menzies

121. The submissions of Mr Menzies relevantly included the following response in the 25 March 2024 Menzies document to order [25] claimed by Ms Bush (Ex R3):

“25.a) The tenant viewed the property and accepted the property ‘as is’. There has been no modifications or changes to the leased property with the exception of a fence erected on the rear boundary

b) We refute this claim and believe this to be the opposite, to the extent of harassing and stalking the landlords work in the local area, posts on social media, and nasty comments and bullying emails.

c) The property was offered/advertised as a 3 bedroom, 2 bathrooms, double carport, air conditioned home at 48a Pilot Street, Urunga. This is what the tenant has received.

d) Our most recent Routine Inspection suggests the tenant is using the back deck quite a bit. The deck is large, stable and well maintained. There are lights, balustrades and the deck meets all safety requirements.

e) There are 12 windows with screens. The tenants claim is incorrect.

f) On recent inspection the clothesline is still standing and in good working condition. The tenant has not reported any issues with the clothesline.

g) The tree removal was enforced by Bellingen Shire Council and does not in any way affect the tenants privacy. The property has one neighbour, this neighbour is situated to the front western side of the property. The tree removal in question is situated on the adjoining block that attaches to the rear northern side of the property.

h) The ‘security issue’ area the tenant is referring to is on the other side of a 7 foot colourbond boundary fence. It is a council reserve/walkway. Why does the tenant feel this graffiti is new? Does she have evidence of this, and if so has she alerted the Police to the ‘undesirables’ walking on public areas?”

Consideration

122. In Hawkesbury Nominees Pty Ltd v Battik Pty Ltd [2000] FCA 185 (Hawkesbury) at [37], [51]-[53], Hill J relevantly said (with Gallop at [1] agreeing):

“[37] The covenant for quiet enjoyment may be breached by the landlord (or those claiming under him) interfering with the physical occupation of the land by the tenant: Hill & Redman’s Law of Landlord and Tenant (18th ed) para 936, note 1. The principal, as the cases discussed below indicate, may be expressed in the following way: there will be a breach of the covenant for quiet enjoyment where the ordinary and lawful enjoyment of the demised premises is substantially interfered with by the acts of the lessor or those lawfully claiming under him, whether or not the title to the land or the possession of the land is otherwise affected. Whether what is complained of amounts to a substantial interference will be a question of fact. A breach may result either from acts of commission or omission by the landlord: see generally, Dennett v Atherton (1872) 7 QB 316, 326-7, Robinson v Kilvert (1889) 41 Ch D 88 at 97.”

“[51] Although a lease creates an interest in land and covenants in the lease run with the land, a lease is a contract … and in the event of a breach of the lease the party not in breach is entitled to damages for the breach. The measure of damages will be that applicable to contract, …

[52] … where damages are to be assessed for breach of contract the damages are the means of placing the plaintiff in the position the plaintiff would have been in had the contract been performed …

[53] ... The fundamental principle is that so far as possible by a monetary award the plaintiff is to be placed in the position he or she would have occupied if the contract had been fulfilled …”

123. The principles in Hawkesbury at [37], [51]-[53] are applied in the Tribunal in respect of the breach of the covenant for quiet enjoyment in a residential tenancy agreement under the RT Act: see, for example, Tanner v NSW Land and Housing Corporation [2023] NSWCATCD 24 at [25].

124. There can be a breach of the covenant for quiet enjoyment without a direct and physical interference with the tenant’s use and enjoyment of land. A breach may occur where there are complaints of the making of noise or the emanation of fumes, of interference with privacy or amenity, and other complaints of a kind commonly forming the subject matter of actions for nuisance. The covenant will be breached if the premises are rendered unfit from a reasonable point of view for the purpose for which they are granted: Telstra Corporation Ltd v Sicard Pty Ltd [2009] NSWSC 827 at [21] (Brereton J).

125. In is uncontroversial that the Tribunal may award damages for non-economic loss in the nature of distress and inconvenience for breach of the landlord’s obligation concerning quiet enjoyment in a residential tenancy agreement under the RT Act. Damages for distress and disappointment are able to be assessed at large. They are not constrained by the application of the limitations of recovery in Part 2 of the Civil Liability Act 2002 (NSW). It is not correct that an award for damages for distress and disappointment should be only made in a token or nominal sum. The assessment of the sum for this head of damages is undertaken in the individual case by an evaluative process applying a sense of fairness and justice to the circumstances proved: Compass Housing Services Co Limited t/as Home in Place v Gower [2023] NSWCATAP 24 (Compass) at [30]-[31].

126. I am not satisfied that Ms Bush has established that there was the deliberate and extreme false presentation of the premises by Mr Menzies and C&P. In any event, if she had established any such conduct, it would not have constituted a breach of the tenancy agreement and so could have not have given rise to an entitlement to an order for compensation under s 187(1)(d) of the RT Act.

127. I am satisfied that there is considerable animosity by Ms Bush towards Mr Menzies and C&P. The email correspondence of Ms Bush comprised by the 26 November 2023 at 9.41pm Bush email, the 26 November 2023 at 9.58pm Bush email and the 29 January 2024 Bush email is typical of the language used by Ms Bush in a larger volume of documents she sent to staff of C&P. I do not accept that Ms Bush has established continued intimidation and retaliation on the part of Mr Menzies and C&P. Having commenced the proceedings on 29 September 2023, Ms Bush has continued in her email correspondence to agitate issues which had been fully set out in the Bush application. I am not satisfied that the response of C&P set out in the 26 November 2023 at 9.45pm Andree Cardow email and the 22 January 2024 Cleary email was continued intimidation and retaliation.

128. I accept the evidence of Dr Huggins in the 15 November 2023 Huggins report and Ms Melville in the 15 November 2023 Melville report that Ms Bush has experienced heightened anxiety and stress due to the failure of Mr Menzies to have carried out the outstanding repairs to the premises referred to in relation to issue 2 above. Having regard to the principles in Compass at [30]-[31], I find that Ms Bush is entitled to an order under s 187(1)(d) of the RT Act for compensation of $500.00.

129. I am not satisfied that Ms Bush has established that Mr Menzies has breached his obligation under s 50(1) and (2) of the RT Act for the following reasons:

1. as to the deck, she has not established that the cockspur coral trees and other vegetation being cut down and left on the ground between 21 and 27 June 2023 caused the presence of mosquitoes. Further, she has not established that the felling of cockspur coral trees and other vegetation occurred on the premises and/or after the commencement of the tenancy agreement on 28 June 2023. In any event, she has not adduced evidence establishing that the premises thereby have been rendered unfit from a reasonable point of view for the purpose for which they are granted;

2. as to adequate ventilation, she has not established that the presence of some windows and doors without screens caused inadequate ventilation within the dwelling on the premises. Further, in this regard there has been no relevant action by Mr Menzies since the commencement of the tenancy agreement on 28 June 2023;

3. the use/enjoyment of the yard, I accept that Mr Menzies entered the premises and constructed the wire fence without her permission between 13 July 2023 and 21 July 2023. However, she has not adduced evidence establishing that the wire fence has not substantially interfered her ordinary and lawful enjoyment of the premises. Further, she has not adduced evidence establishing that the premises thereby have been rendered unfit from a reasonable point of view for the purpose for which they are granted. On the contrary, Mr Menzies is not requiring compliance with cl 59.6 and special condition 3 of the tenancy agreement in respect of that part of the yard which is on the side of the wire fence furthest from the house;

1. as to the use of the clothesline, she has not adduced evidence establishing that her use of the clothesline has been prevented or impeded, and the loss of its use has substantially interfered her ordinary and lawful enjoyment of the premises. Further, she has not adduced evidence establishing that the premises thereby have been rendered unfit from a reasonable point of view for the purpose for which they are granted;

2. as to the destruction of her privacy and the severe affect upon her security due to removal of numerous trees, she has not established that the felling of cockspur coral trees and other vegetation occurred after the commencement of the tenancy agreement on 28 June 2023. In any event, she has not adduced evidence establishing that the premises thereby have been rendered unfit from a reasonable point of view for the purpose for which they are granted;

3. as to the use/enjoyment of the premises due to the lack of cleanliness of the dwelling, with no proper cooking amenities, having to shower in someone else’s filth and overlooking a mosquito-ridden swamp, for 10 months, she has not established that there are no proper cooking amenities, and the shower is filthy. Nor has she established that the felling of cockspur coral trees and other vegetation occurred on the premises and/or after the commencement of the tenancy agreement on 28 June 2023. In any event, she has not adduced evidence establishing that the premises thereby have been rendered unfit from a reasonable point of view for the purpose for which they are granted.

130. The heightened anxiety and stress otherwise experienced by Ms Bush in respect of the matters in respect of which she has alleged Mr Menzies breached his obligation under s 50(1) and (2) of the RT Act have substantially arisen because of her mistaken view as to the breaches of the RT Act by Mr Menzies and her rights against him. It follows that Ms Bush has not established that she is otherwise entitled to an order for compensation under s 187(1)(d) of the RT Act against Mr Menzies.

Orders

131. I make the following orders:

1. The order made on 17 May 2024 allowing the applicant to seek the orders in the document which is pages 1 and 2 of the bundle of documents filed on 1 March 2024 so far as paragraphs 1, 4 except so far as the cleaning of the oven and flue, 6 to 12, 24 and 25 except for the last two dot points is varied by adding “16 to 18 except for the weeds on the fence and the removal of the fence” after “12”.

2. The respondent is to carry out the following repairs to the premises the subject of the residential tenancy agreement between the applicant and himself by 4 July 2024:

1. the floorboards in the loungeroom approximately 1.5 metres from the main bedroom where the previous repair has come away;

2. the knob of the stove with a detached sleeve;

3. the oven door seal;

4. the sliding closet door in the second bedroom.

3. The applicant may instal safety rails for each of the toilet and shower in the ensuite, the toilet in the laundry, and the bath in the main bathroom of the premises conditional on the safety rails being installed by a licensed builder.

4. The respondent is to pay the sum of $510.92 to the applicant immediately.

5. The proceedings are otherwise dismissed.

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

Registrar

Decision last updated: 20 December 2024