CM v COMMISSIONER FOR SOCIAL HOUSING (Residential Tenancies)

[2017] ACAT 59

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

CM v COMMISSIONER FOR SOCIAL HOUSING (Residential Tenancies) [2017] ACAT 59

RT 3/2016

Catchwords:              RESIDENTIAL TENANCIES – breaches of tenancy agreement – remedies for breaches – medical evidence about the capacity of the applicant meant corroboration required – application dismissed

Legislation cited:      Civil Law (Wrongs) Act 2002 s 110

Human Rights Commission Act 2005 s 62

Residential Tenancies Act 1997 ss 71, 76, 83 standard terms 52, 54, 55, 57, 59

Cases cited:Aye v ACT Housing [2001] ACT RTT 13

Best v Hardie (Tenancy) [2010] NSWCTTT 91

Ferguson v Crawford [2003] NSWCTTT 148
Grenerger v Gilmour(Tenancy) [2012] NSWCTTT 4
Skennar and Severin v Tapsed Pty Ltd [2004] NSWCTTT 419
Stotski v Raper [2005] NSWCTTT 704
Werner v Lichaa [2004] NSWCTTT 784

Tribunal:                   Senior Member L Beacroft

Date of Orders:  11 August 2017

Date of Reasons for Decision:         11 August 2017

AUSTRALIAN CAPITAL TERRITORY  )

CIVIL & ADMINISTRATIVE TRIBUNAL       )          RT 3/2016

BETWEEN:

CM

Applicant

AND:

COMMISSIONER FOR SOCIAL HOUSING

Respondent

TRIBUNAL:Senior Member L Beacroft

DATE:11 August 2017

ORDER

The Tribunal orders that:

1.The application is dismissed.

2.A person must not publish any information about this matter or any evidence provided during the proceedings that will identify the name of the applicant.

………………………………..

President G Neate

Delivered for and on behalf of the Tribunal

REASONS FOR DECISION

1.CM (the applicant), is a tenant of the Commissioner for Social Housing (the respondent), having entered into a residential tenancy agreement (the agreement), dated 6 March 2002, for a premises in O’Connor, ACT (the premises). The standard residential tenancy terms (the terms) as set out in Schedule 1 to the Residential Tenancies Act 1997 (the Act) applied to the tenancy. In her amended application dated 9 March 2016 filed with the ACT Civil and Administrative Tribunal (ACAT or the Tribunal), the applicant contended that many terms were breached. On the basis of these breaches, the applicant sought various rent reductions for various periods of the tenancy under section 71(1) of the Act; various compensation for her alleged loss under section 83(d) of the Act; and specific performance of the respondent’s obligations as the lessor under section 83(b) of the Act. The respondent denied that the agreement was breached. The Tribunal has exclusive jurisdiction in disputes about the agreement.[1] 

[1] Section 76 of the Residential Tenancies Act 1997

2.Prior to her application to the Tribunal, the applicant had made complaints to the Human Rights Commission (HRC) and the ACT Ombudsman about the condition of her premises. As a result of these complaints, in August 2014 an arrangement was agreed between the parties whereby the applicant would “notify her ADACAS Advocate [ACT Disability, Aged and Carer Advocacy Service] … of any maintenance issues that she is experiencing in relation to her home so that the Advocate can advise Housing ACT … [and the relevant person at Housing ACT] will notify Spotless [the maintenance provider for Housing ACT]…[2] Under section 62 (4) of the HRC Act, the agreement when it was filed at the Tribunal and being a discrimination complaint became enforceable as if it is an order of the Tribunal.

[2] Conciliation Agreement under section 62 of the Human Rights Commission Act 2005, ACT HRC ref number 131204753, dated 12 August 2014

3.The Tribunal sets out below its reasons for the order set out above. In summary, the applicant bears the onus of proof and the Tribunal sought corroboration from other evidence for any of the applicant’s contentions due to the medical and other evidence about the applicant’s capacity to misconstrue the facts. The Tribunal finds that the applicant did not prove on the balance of probabilities any of the alleged breaches by the respondent of the tenancy agreement, and that the evidence provided by the respondent is to be preferred. On this basis the applicant’s application for remedies due to alleged breaches of the tenancy agreement by the respondent is dismissed.

Conduct of the hearing

4.A hearing was held on 2 and 21 September 2016. The applicant was represented by Mr Avner Bahren, Solicitor, and the respondent was represented by Ms Catherine Warden, ACT Government Solicitors supported by Mr Chris Atkins, advocate, Commissioner for Social Housing. Oral evidence was given by the applicant; Ms Jacqui Daniels, Manager, Contract Management, Commissioner for Social Housing; Ms Ivette Gonzalez and Ms Michelle Peruzzi both advocates from ACT Disability, Aged and Carer Advocacy Service (ADACAS) who supported the applicant at various times; Mr Damien Howe, Proper Officer, Spotless (the maintenance contractor for the respondent); Dr Mark Scarborough, the applicant’s clinical psychologist; Dr Sean Flanagan, the applicant’s ear, nose and throat surgeon; Mr Graham Bowen, Senior Director, ASI Locksmiths (a sub-contractor to Spotless), Mr Kelvin Aument, Chief Financial Officer, Affinity Electrical (a sub-contractor to Spotless), and Dr Tran, the applicant’s General Practitioner.

5.Prior to the hearing the parties exchanged and filed various documents setting out their contentions and supporting evidence. Both parties subpoenaed various material including records of Spotless and medical records of the applicant, which was in evidence before the Tribunal.

6.The contested issues at the hearing were as follows:

(a)Did the respondent breach the agreement, and if so, in what way?

(b)If the respondent breached the agreement, what remedies are appropriate?

Applicants’ contentions

7.The applicant has the burden of proving her case on the balance of probabilities. Her contentions on the two contested issues in paragraph 8 above are summarised below.

Issue (a) Did the respondent breach the agreement, and if so, in what way?

8.The applicant’s submissions were that the applicant complied with the agreement and that the respondent breached the following terms: 52 (“peace, comfort or privacy” in use of the premises, that is,  quiet enjoyment), 54(1)(a) (“at the start of the tenancy” the premises are “fit for habitation”) , 54(1)(c) (“at the start of the tenancy” the premises, including appliances etc, are in a “reasonable state of repair”), 54(1)(d) (“at the start of the tenancy” the premises are “reasonably secure”), 55(1) (premises are maintained in a “reasonable state of repair”), 57 (non-urgent repairs within four weeks of notice, subject to the tenant providing notice and the negligence or wilful acts of the tenant), and 59 ( carry out urgent repairs “as soon as necessary, having regard to the nature of the problem”, subject to the tenant providing notice).

9.The applicant’s contentions about each of the alleged breaches were very detailed, and are summarised below.

10.The applicant contended that in April 2012 she had problems with her air conditioning unit, that it leaked gas into her premises, that it was on the cooling cycle permanently, and that she reported this problem to the respondent. The applicant contended that there was a series of unsatisfactory attendances by tradespersons about the unit, and that when tradespersons attended in or about mid-April 2012 they said that there were “corroded” pipes in the wall behind the air conditioner.[3] However the unit was not turned off, the leak was not stopped, and the situation continues to date.[4] In addition, the applicant could not properly heat or cool the premises.[5]

[3] Applicant’s amended application, dated 9 March 2016, paragraph 2.12

[4] Applicant’s amended application, dated 9 March 2016, paragraphs 2.13 – 2.16, 11.6

[5] Applicant’s amended application, dated 9 March 2016, paragraph 11.8

11.The applicant contended that she has suffered and continues to suffer significant problems with her voice and breathing airways due to the “gas leak [associated with the unit] and/or the constant exposure to excessively cold premises.”[6] On this basis the applicant claimed a rent reduction under section 71(1)(a)(i) and (ii) of the Act of 40% of the weekly rent from 15 March 2012 to 24 February 2016, being $8011.40.[7]

[6] Applicant’s amended application, dated 9 March 2016, paragraphs 2.15, 11.6

[7] Applicant’s amended application, dated 9 March 2016, paragraphs 12.1-12.2

12.She claimed that the gas leak and the delay in replacing the air-conditioner caused her a loss of amenity and health problems. In her oral evidence the applicant explained that she largely lived in the lounge room where the gas from the air-conditioner leaked, and the extreme cold and gases caused problems with her voice. In a medical report obtained by the applicant for the proceedings, Dr Sean Flanagan advised that he had first seen the applicant in October 2012, and that she suffers from “ongoing issues with the irritation of the upper and lower airways exacerbated by environmental factors.”[8] The applicant also claimed that the breathing of her pet birds was adversely impacted by the gas leak, and provided various medical notes about her bird  dated 22 February 2016[9] and 7 December 2015.[10]

[8] Letter by Dr Sean Flanagan, dated 16 May 2016, attachment 20, applicant’s witness statement dated 23 June 2016

[9] Exhibit A5, Canberra Vet Hospital, patient history dated 22 February 2016

[10] Exhibit A7, RSPCA (ACT) Veterinary Clinic, medical note dated 7 December 2015

13.The applicant referred to the case of Best v Hardie [2010] NSWCTTT 91 to support her claims. In that case an air-conditioner failed in July and was not fixed until November, the landlord provided no heater, and the tenant received a rent reduction for the costs of replacement heating incurred by the tenant.

14.Beginning in about July 2013, the applicant contended that unidentified persons assaulted and robbed the applicant and/or entered the premises, and/or stole property including the keys to the premises, at various times, with the last incident noted by the applicant in her submissions being in December 2014. She contended that in mid-December 2014 the premises were burgled using the keys that were stolen the month prior.[11] The applicant contended that she reported each of these incidents to the police. She provided ‘Police Incident Report 5446917’ for an incident on 3 July 2013 reported 4 July 2013, an assault and robbery at about 6:30pm at her front door, which is first mentioned in the ADACAS case notes on 24 October 2013[12], ‘Police Incident Report 5712831’ for an incident on 12 November 2014 reported 24 November 2014, an assault and burglary, which the ADACAS case notes mention on 24 November 2014[13], and a police card showing a police incident number 1334203 logged on 9 December 2014[14] which is likely to be a burglary based on the ADACAS case notes.[15] The ADACAS case notes mention other incidents reported to them by the applicant during the timeframe relevant to this matter, for example, a burglary on 16 September 2013 that was reported to the police (police incident number 1219227) and the respondent.[16] The applicant contended that she contacted the respondent after each incident to have the locks changed and kept in good order. While locksmiths did attend the premises, she contended that the locks were not changed promptly or at all and/or not kept in good order as necessary.

[11] Applicant’s amended application, dated 9 March 2016, paragraphs 3.1 – 5.4

[12] Exhibit A6, ADACAS case notes, case note by Michelle Peruzzi dated 24 October 2013

[13] Exhibit A6, ADACAS case notes, case note by Michelle Peruzzi dated 24 November 2014

[14] Attachments 3 and 4, applicant’s witness statement dated 23 June 2016

[15] Exhibit A6, ADACAS case notes, emails between Michelle Peruzzi and Deshawn Wattanatassi dated 12 December 2014

[16] Exhibit A6, ADACAS case notes, case notes by Michelle Peruzzi dated 16 September 2013

15.The applicant cited several authorities to support her arguments: Stotski v Raper [2005] NSWCTTT 704 where a tenant complained about the security of the premises, window keys were not provided for the lockable windows, the premises were burgled, the Tribunal found that the premises were not reasonably secure and the tenant was compensated for loss; Skennar and Severin v Tapsed Pty Ltd [2004] NSWCTTT 419 where the tenants requested window bars be installed on a certain window on police advice following a burglary, however they were not installed and another burglary through that window occurred, the Tribunal found that the premises were not reasonably secure and awarded the tenants compensation for loss; Ferguson v Crawford [2003] NSWCTTT 148 where the premises were burgled three times and after the first burglary the tenants requested lockable windows but these were not installed, the Tribunal found the premises were not reasonably secure and awarded compensation to the tenants for their loss; Aye v ACT Housing [2001] ACT RTT 13, where keys to a security door was not provided to the tenant at the commencement of the tenancy and in addition a sliding courtyard door was not reasonably secure because of faults in the mechanism, the premises were burgled and the Tribunal awarded compensation to the tenant. On the basis of the above contentions and authorities, the applicant claimed a rent reduction under section 71(1)(a)(i) and (ii) of the Act of the weekly rent from 12 March 2014 until 24 February 2016 for unsecure premises and unsafe premises, being $889.07 in total.[17]

[17] Applicant’s amended application, dated 9 March 2016, paragraphs 13-15

16.In addition to the problem with her air-conditioning (paragraph 12 to 15 above), the applicant contended that there were several electrical problems resulting in blackouts 3- 4 times/year between 2012 and 2016. She contended that she couldn’t use all the components of the stove at the same time without the power tripping, which an electrician had confirmed to her[18], and that another electrician had recommended an “upgrade” to the switchboard.[19] According to the applicant, while she reported each electrical problem many of her reports were not followed up. In about December 2014 the applicant had a blackout and she contended that there were “sparks” coming from the switchboard, that she was instructed by the respondent’s maintenance service to switch the switchboard to the “off” position and she did so and then switched it on again, and that she then received a shock that left her unconscious and caused a head injury.[20] She continued to experience electrical problems commonly, for example on or about 20 March 2016 when the applicant contended that her fridge stopped working and she was without power for some days.[21]

[18] Work order 6340908, dated 9 April 2013, Exhibit A3

[19] Work order 5771480, dated 12 December 2012, Exhibit A3

[20] Applicant’s amended application, dated 9 March 2016, paragraph 6.1-6.8

[21] Applicant’s witness statement dated 23 June 2016, paragraphs 52-53

17.The applicant contended that on or about 9pm on 19 November 2015, there was a fire on the cooktop of her stove “which spread and caused a shallow plastic cafeteria style tray next to the cook top to partly melt.”[22] The fire followed “electrical sparks or electrical arcs arising from the glass surface of the cook top.”[23] She turned off the cooktop, and then unsuccessfully attempted to turn off the fuse for the cooktop at the switchboard. She unsuccessfully tried to clear the air by opening the lounge room door. When she opened the front door she “passed out from smoke inhalation, causing her to fall face forward.”[24] She isn’t sure how the fire was extinguished, and confirmed that the fire service didn’t attend. The smoke alarm never activated. The respondent’s maintenance services attended but “to date the stove top [and] main electrical switchboard for the Premises has not been inspected, tested or repaired by a professional tradesperson.”[25] The applicant does not use the “top left hot plate” and has “safety concerns [about]… the stove top and main electrical switchboard…”[26] She contended that the following day she attended Calvary Hospital for medical attention, and then later her GP for burns and smoke inhalation.[27] She contended that the cooktop has not been properly checked by an electrician since the fire. She contended that parts of the area around the cooktop were blackened by the fire, but that she “did some cleaning” which is why it not evident on inspection later on.[28]

[22] Applicant’s amended application, dated 9 March 2016, paragraph 7.3

[23] Applicant’s amended application, dated 9 March 2016, paragraph 7.3

[24] Applicant’s amended application, dated 9 March 2016, paragraph 7.9

[25] Applicant’s amended application, dated 9 March 2016, paragraph 7.15

[26] Applicant’s amended application, dated 9 March 2016, paragraph 7.16 – 7.17

[27] Oral evidence applicant, 2 September 2016

[28] Oral evidence applicant, 2 September 2016

18.On about 20 or 21 February 2016, while watching her television the applicant saw smoke and flames coming from the television or the power board in use. The applicant extinguished the fire, and reported it to the respondent. However she contended that no-one has followed up.

19.The applicant referred to authority to support her claims for the alleged fires (refer to paragraphs 17 to 19 above): Grenerger v Gilmour [2012] NSWCTTT 4 where the Tribunal awarded compensation to the tenant due to the loss of use of a cooktop for “an extensive period” and the loss of other kitchen amenities, with tradespersons attending regularly[29]; Werner v Lichaa [2004] NSWCTTT 784 where there was a fire at the premises, the fire brigade attended and the evidence of a fire brigade officer attending a fire was that the unit’s fuse box was defective and a great safety risk, and the Tribunal awarded compensation to the tenant.[30]

Issue (b) If the respondent breached the agreement, what remedies are appropriate?

[29] Grenerger v Gilmour [2012] NSWCTTT 4, page 2

[30] Werner v Lichaa [2004] NSWCTTT 784, page 2

20.The applicant claimed rent reduction for certain periods for various breaches set out above under section 71(1) of the Act, in the sum of $8900.47. She also sought specific performance by the respondent under the agreement for certain electrical and locksmith works. Finally she sought compensation for her loss caused by the breaches, both replacement of damaged or stolen goods and medical costs for her personal injuries, under section 83(b) and (d) of the Act. While the total compensation sought was in part unspecified, it was upwards from $9000.[31]

Respondent’s contentions

[31] Applicant’s amended application, dated 9 March 2016, paragraphs 12-15, and orders sought

21.The respondent contended that the application should be wholly dismissed. An overriding contention of the respondent was that the weight given to applicant’s recollection of events and incidents was to be considered in the context of medical evidence from the applicant’s health professionals. They quoted from a letter from the applicant’s clinical psychologist Dr Mark Scarborough, dated 21 April 2008, as follows:

…I also believe that [CM] probably suffers from a Factious Disorder with combined psychological and physical signs and symptoms, often engaging in pseudolgia fantastica…[32]

[32] Respondent’s response, dated 19 August 2016, annexure N, letter from Dr M Scarborough to Dr H Berenson, dated 21 April 2008

22.They also quoted a similar statement from a report about the applicant from a consultant psychiatrist Dr P Farbach, dated 10 May 2010.[33] The respondent also referred to a hospital discharge summary for the applicant dated 2 January 2013 which states that the applicant “has delusional disorder, psychotic illness, paranoia…”[34]

[33] Respondent’s response, dated 19 August 2016, annexure O, report by Dr P Farnbach, dated 10 May 2010

[34] Respondent’s response, dated 19 August 2016, annexure C, contractor’s estimate, dated 28 August 2012

23.The respondent’s contentions against the two contested issues listed in paragraph 6 above are summarised below.

Issue (a) Did the respondent breach the agreement, and if so, in what way?

24.In response to the applicant’s contentions set out above (paragraph 10 to 13), concerning an air-conditioner, the respondent contended as follows. The respondent’s records do not evidence a call from the applicant about the air-conditioner in April 2012. The records show she called about a problem, with the “main switch” on 18 July and that a tradesman on 20 July 2012 fixed it. He noted that her then heater was “tripping powerboard”, and so he left her a replacement column heater which he tested to be sure it was operating.[35] Given the provision of a heater the respondent contended that the applicant could have warmed herself. It is not clear from the respondent’s records the exact date that they became aware of the problem with the air-conditioner – Ms Daniels gave oral evidence that it was in July 2012.[36] Certainly the respondent was aware of the applicant’s concerns by the 8 August 2012.[37] The various records show that a tradesman attended the premises on 10 August 2012 and he identified a leak[38], and again on 28 August 2012 at which time the tradesman recommended replacing the air-conditioner due to a “leak in indoor unit” and he set out various requirements for this work, for example a boom would be required, re-enforcing that it was not a simple job.[39] The relevant work orders, including one which diagnosed the problems with the air-conditioner in some detail after doing “diagnostic tests”[40], do not state that the air-conditioning unit was permanently working on the cooling cycle as the applicant alleged.

[35] Respondent’s response, dated 19 August 2016, annexure B, work order dated 20 July 2012, and annexure A, works for specific property, page 16; Exhibit A4, Affinity Electrical notes, service report 75474 dated 20 July 2012

[36] Oral evidence, Ms Jacqui Daniels 21 September 2016

[37] See issue date for work order for replacing air-conditioner, annexure D, work order, dated 12 December 2012

[38] Exhibit A4, Affinity Electrical notes, service report 75639 dated 10 August 2012

[39] Respondent’s response, dated 19 August 2016, annexure P, discharge summary, dated 1 January 2013; Exhibit A4, Affinity Electrical notes, service report 78955 dated 28 August 2012

[40] Contractor’s estimate for work order 5771480, dated 28 August 2012, Exhibit A3, applicant’s bundle of subpoenaed Spotless documents; Exhibit A4, Affinity Electrical notes

25.Some of the work for a new unit to be installed was undertaken on 20 November 2012[41], however the necessary access to secure common property in the building was unexpectedly not possible due to a problem with the applicant’s key[42], and so it was completed on 12 December 2012, with two electricians attending.[43] The respondent contended that the delay in installation was due to “the Applicant’s refusal for the work to be undertaken earlier due to her unavailability.”[44] Mr Kevin Aumont from the electrical firm doing the work confirmed in his oral evidence “several attempts to attend”[45], and a variation to the work order stated that the work had to be delayed due to the tenant not having access to the premises of the body corporate.[46] The respondent also contended that the delay was due to the complexity of the work.[47] The records demonstrated that the replacement of the air-conditioner was complicated due to its positioning, required a cherry picker, access to parts of the premises controlled by the body corporate,  two electricians[48] and that it took some hours to complete.[49]

[41] Exhibit A4, Affinity Electrical notes, service report 78996 dated 20 November 2012

[42] Exhibit A4, Affinity Electrical notes, service report 78996 dated 20 November 2012

[43] Exhibit A4, Affinity Electrical notes, service report 81591 dated 12 December 2012 and service report 82633 dated 12 December 2012

[44] Respondent’s response, dated 19 August 2016, paragraph 21 and referencing annexure D, work order, dated 12 December 2012

[45] Oral evidence, Mr Kevin Aumont, Chief Financial Officer, Affinity Electrical

[46] Variation to work order 577480, Exhibit A3, applicant’s bundle of subpoenaed Spotless documents

[47] Oral evidence, Damien Howe, Proper Officer Spotless, 21 September 2016; Oral evidence Ms Jacqui Daniels, 21 September 2016

[48] Respondent’s response, dated 19 August 2016, annexure C, contractor’s estimate, dated 28 August 2012

[49] Respondent’s response, dated 19 August 2016, annexure D, work order, dated 12 December 2012

26.In response to the applicant’s contentions set out above (paragraphs 14 to 16), concerning assaults of the applicant in July 2013 and 2014, and burglaries in 2014, the respondent contended that they are not liable for any injuries or property loss. The respondent relied in particular on the evidence of Ms Jacqui Daniels, and her review of the respondent’s records set out in her witness statement and as confirmed in her oral evidence.[50] Ms Daniel’s evidence show that the respondent has responded to many requests for the security of the premises to be attended to in various ways over the life of the tenancy.[51] The respondent contended it is not liable for any assault and robbery that occurred at the entrance to the applicant’s premises in July 2013. The respondent’s records show that during 2013-14 the applicant reported her keys stolen on 28 May 2013, and that all external locks were replaced on 30 May 2013[52], and at her request certain locks were again replaced/combinations changed on 19 July 2013, 17 September 2013 and 13 November 2014[53]. The respondent’s records show that the applicant requested a key to the common area on 13 November 2014, but as this was a matter for the body corporate the respondent could not act on this.[54] The respondent has a record of the applicant reporting a burglary on 11 December 2014, and on the 15 December 2014 the external locks were changed.[55] A request to have a lockable sliding door fitted was rejected by the respondent since the door configuration at the premises would not allow it.[56] Otherwise the respondent has no records relevant to the applicant’s contentions about security issues over the period relevant to issues raised by the applicant.

[50] Ms Jacqui Daniel’s witness statement, dated 19 August 2016, paragraphs 19 - 29

[51] Attachment A, History of works for the premises, Ms Jacqui Daniel’s witness statement, dated 19 August 2016

[52] Respondent’s response, dated 19 August 2016, annexure E, work order, dated 30 May 2013

[53] Attachment A, History of works for the premises, Ms Jacqui Daniel’s witness statement, dated 19 August 2016

[54] Respondent’s response, dated 19 August 2016, paragraph 7.1

[55] Respondent’s response, dated 19 August 2016, annexure F, work order, dated 15 December 2014

[56] Respondent’s response, dated 19 August 2016, annexure G, docket history, dated 31 December 2014

27.In response to the applicant’s contentions set out above (paragraph 18 above), concerning electrical problems resulting in blackouts 3- 4 times/year between 2012 and 2016 and an alleged electrical shock in about December 2014, a blackout that left the fridge not working in March 2016 for some days, the respondent contended as follows. The applicant has a history of reporting power outages at the premises, and the respondent’s records show that an electrician attended on 27 occasions since 2010 in response to her concerns about outages.[57] The respondent contended that the recommendation by a tradesman on 28 August 2012 to upgrade the switchboard was in response to what that tradesman observed of the tenant’s behaviour: “…the tenant overloads the circuit many times. Switchboard needs to be upgraded as the tenant is experiencing nuisance tripping…”[58] The respondent contended that the stove, when in full use, did work, and was checked after a new circuit breaker was installed on 9 April 2013.[59] Also the applicant’s ADACAS support worker, Ms Peluzzi, confirmed in her oral evidence that the stove has required some minor repairs for example replacing the oven light but it does work, despite the applicant saying the stove doesn’t work.[60]

[57] Respondent’s response, dated 19 August 2016, paragraph 9.2

[58] Contractor’s estimate 5771480, dated 28 August 2012, Exhibit A3

[59] Work order 6340908, dated 9 April 2013, Exhibit 3

[60] Oral evidence Ms Peluzzi, 21 September 2016

28.The records show that the applicant reported an outage and sparking on 22 December 2014, that she was advised by the operator to turn the “main power switch” off and on, and that when this failed to fix the problem an electrician attended at 1pm that same day.[61] The electrician, an ACTEWAGL inspector and a Bepcon representative, conducted electrical assessments and tests, and the electrician fixed the problem.[62] The electrician confirmed that the applicant had lost power to half of the premises. He noted that “a powerboard was covered in liquid” at the premises, that the powerboard was “faulty”[63], that the tenant “refused” to discard it, and that the applicant “claimed to be shocked” to which he responded by advising her to “seek medical advice.”[64] The ACTEWAGL audit noted that the applicant claimed she received a shock when “accessing the RCD unit to turn power back on”’, and that the audit indicated the “premise [is] in sound electrical condition. Faulty power board unit inside premise [is found] to be cause of issue. Bepcom advised customer to replace faulty power board.”[65]

[61] Respondent’s response, dated 19 August 2016, annexure H, electrical report, dated 22 December 2014

[62] Respondent’s response, dated 19 August 2016, annexures H and J, both dated 22 December 2014

[63] Respondent’s response, dated 19 August 2016, annexure I, work order, dated 22 December 2014

[64] Respondent’s response, dated 19 August 2016, annexure H, electrical report, dated 22 December 2014

[65] Respondent’s response, dated 19 August 2016, annexure J, ACTEWAGL audit, dated 22 December 2014

29.The respondent contended that they had also responded promptly to other reports of electrical problems, including on 22 March 2016. When the electrician attended urgently, they fixed a faulty light switch but found that the power supply was uninterrupted, with the freezer showing no signs of being without power for days as the applicant claimed.[66] A further attendance on 1 June 2016 after the applicant reported that the switchboard “is hot to touch” found the switchboard to be operating and that a faulty heater and overloading caused the problem.[67] 

[66] Witness statement Ms Jacqui Daniels, dated 19 August 2016, referencing attachment S, work order dated 22 March 2016

[67] Work order 10345351, dated 1 June 2016, Exhibit A3

30.The respondent contended that the numerous records for the premises demonstrate that at all times the switchboard was certified to the relevant standard. In any case an upgrade to the switchboard was undertaken when the new air conditioner was installed.[68] A more comprehensive upgrade would have only been possible under the relevant Rule if approved by the respondent and paid for by the tenant.[69]

[68] Affinity Electrical service report 81542, undated, Exhibit A4

[69] Business rule, tenant modification, Exhibit T5

31.In response to the applicant’s contentions set out in paragraph 17 above, concerning an alleged fire on the cooktop of her stove at approximately 9pm, 19 November 2015, the respondent contended as follows. The respondent has no records of the applicant reporting a fire to the cooktop or any fault to the cooktop about this time. The respondent’s records show that the applicant reported a problem with the smoke detector on 20 November 2015, which would have been the day after the alleged fire in the kitchen, and the smoke detector was replaced and a photo of the kitchen area taken which does show a plastic tray partly melted but no fire damage.[70] Since the alleged fire, the respondent’s records show that electricians have attended the premises to assess the power on at least three occasions.[71] An inspection on the 1 March 2016 of the premises showed no evidence of a fire or smoke damage on the cooktop or the surrounding area.[72]

[70] Respondent’s response, dated 19 August 2016, annexure K, Spotless work order 9534233 dated 20 November 2015

[71] Respondent’s response, dated 19 August 2016, paragraph 10.6

[72] Respondent’s outline of submissions of the respondent, dated 7 October 2016, annexure M, photos of premises, 1 March 2016

32.In response to the applicant’s contentions set out in paragraph 18 above, concerning alleged smoke and flames coming from the television or the power board while watching her television on 20 or 21 February 2016, the respondent contended as follows. The respondent has no records of the applicant reporting this to them. Their records show that the applicant raised a concern about the smoke alarm on 24 February 2016, which was rectified on the same day.[73] At an inspection of the premises on 1 March 2016 no fire or smoke damage in the lounge room was identified.[74]

Issue (b): What if any remedies including compensation are appropriate for the respondents?

[73] Respondent’s outline of submissions of the respondent, dated 7 October 2016, annexure L, work order dated 24 February 2016

[74] Respondent’s outline of submissions of the respondent, dated 7 October 2016, annexure M, photos of premises, 1 March 2016

33.In summary, the respondent denied there was any basis for a rent reduction due to electrical failures, unsecure premises and unsafe premises (as set out in the applicant’s submissions, see paragraph 22 above) as follows:

a significant number of issues in the property have been caused by the Applicant’s own negligence or wilful acts, such as overloading power broads and losing keys, the Respondent has continued to respond to all reported issues in the property, despite the fact that it may not have always had an obligation to do so, and there is doubt as to whether the Applicant ever reported certain alleged issues to the Respondent, particularly as there is a tailored system in place for the Applicant to report issues and the respondent has no record of receiving these complaints in line with that arrangement.[75]

[75] Respondent’s outline of submissions of the respondent, dated 7 October 2016, paragraph 22

34.The respondent referred to photos of the applicant’s premises taken on 1 March 2016 which showed no fire damage, multiple electrical goods connected to powerboards and significant material stacked around and on top of appliances.[76] They contended that the respondent is not liable for any damage to her property due to power surges and power outages caused by her own appliances and her treatment of these appliances.

[76] Respondent’s outline of submissions of the respondent, dated 7 October 2016, annexure M, photos of premises, 1 March 2016

35.The respondent denied that they were liable for loss of the applicant’s stolen property as follows: “the Respondent …cannot be held liable for the theft of the Applicant’s goods in circumstances where the property was reasonably secure at the commencement of the tenancy, and where the Respondent has responded to all reports of security issues in accordance with the requirements of the tenancy agreement.”[77]

[77] Respondent’s outline of submissions of the respondent, dated 7 October 2016, paragraph 26

36.The respondent further contended that the applicant had not provided “any evidence to causally connect the alleged poor condition of the property…to the alleged personal injuries suffered by the Applicant.”[78]

[78] Respondent’s outline of submissions of the respondent, dated 7 October 2016, paragraph 25

37.The respondent contended that the Tribunal should not make any order for specific performance by the respondent since the respondent is not in breach of the agreement: “all maintenance work has been completed as reported by the Applicant.”[79]

[79] Respondent’s outline of submissions of the respondent, dated 7 October 2016, paragraph 29

38.In relation to the applicant’s claims for compensation and specific performance, the respondent referred to the fact that the respondent is a public authority, and therefore the respondent’s “ability to undertake tasks beyond its standard obligations as a landlord is limited by the resources available to it.”[80]

Findings

[80] Section 110, Civil Law (Wrongs) Act 2002, cited in respondent’s outline of submissions of the respondent, dated 7 October 2016, paragraphs 30 - 31

39.The applicant bears the onus of proof. In this case the Tribunal sought corroboration from other evidence for any of the applicant’s contentions due to the medical and other evidence about the applicant’s capacity to misconstrue the facts. The Tribunal accepts the contentions from the respondent set out in paragraphs 21 to 22 above that little weight can be given to applicant’s recollection of events and incidents, where uncorroborated, given medical evidence from the applicant’s health professionals. The evidence of the applicant’s two ADACAS support workers also confirmed that at times the applicant has a limited perspective about reality. For example Ms Peruzzi said in her oral evidence that she attended the applicant’s premises because the applicant was complaining that the stove didn’t work, however Ms Peruzzi said that it did work.[81] Similarly Ms Gonzalez said that the applicant “doesn’t lie”, but she gave the example that the applicant would tell her that she has no food when there were tins of food and the underlying issue the applicant was concerned about was that her bag was stolen.[82]

[81] Oral evidence Ms Peruzzi, 21 September 2016

[82] Oral evidence Ms Gonzalez, 21 September 2016

40.The Tribunal’s findings on the two contested issues listed in paragraph 8 above are set out below.

Issue (a) Did the respondent breach the agreement, and if so, in what way?

41.In response to the applicant’s contentions set out above (paragraphs 12 to 15), concerning an air-conditioner, the Tribunal finds that there is no breach of the terms of the agreement. The Tribunal finds that the time to replace the air-conditioner was reasonable given the complexity of the works required, and that the applicant contributed to the delay due to her non-availability at times and not having the correct key access to the common areas when required. The evidence is clear that the applicant was provided with a heater at an early stage when the air-conditioner became problematic, so she could heat herself over the cooler months until it was fixed. There is no corroboration of the applicant’s claim that the air-conditioner was permanently on the cooling cycle – the evidence provided by the respondent is accepted by the Tribunal, that since there was no mention of it being permanently on the cooling cycle by the various tradespersons attending, then this is evidence that it was not the case. Given these findings, the authority cited by the applicant (Best v Hardie [2010] NSWCTTT 91) can be distinguished.

42.The Tribunal finds that the evidence is not sufficient to prove the applicant’s contention that the gas leak caused her voice condition. Dr Sean Flanagan in his written evidence advised that the applicant’s condition is a “multifactorial problem”, and a gas leak and air-conditioner failure “contributed to her voice problems”, and “at the very least …are exacerbating factors.”[83] However in his oral evidence he stated that the applicant could suffer from her condition “without environmental triggers”, and that over the time he had been seeing her, her condition stayed “approximately the same”[84], when the gas leak was only temporary. Dr Flanagan agreed with a statement he made in a letter dated 21 December 2015 to another medical practitioner concerning the applicant that the applicant is “borderline in her ability to manage herself.”[85] The Tribunal also finds there is insufficient evidence to prove her contention that the gas leak caused problems for breathing of her pet bird – indeed the medical notes she provided for her bird were dated in late 2015 and early 2016 and did not refer to any link with the gas leak, but refer to reported causes of the bird’s medical issues as “house was fumigated” and bird was “trodden” on.[86]

[83] Report by Dr Sean Flanagan, dated 25 May 2016, attachment 20, applicant’s witness statement dated 23 June 2016

[84] Oral evidence, Dr Sean Flanagan, 21 September 2016

[85] Oral evidence Dr Sean Flanagan, 21 September 2016, referring to letter from Dr Flanagan to Dr Lijie Han dated 21 December 2015, attachment 15, applicant’s witness statement dated 23 June 2016

[86] Exhibit A5, Canberra Vet Hospital, patient history dated 22 February 2016; Exhibit A7, RSPCA (ACT) Veterinary Clinic, medical note 7 December 2015

43.In response to the applicant’s contentions set out above (paragraphs 14 to 15), concerning incidents of assault, robbery and burglary in 2013 and 2014, the Tribunal finds that there is no breach of the terms of the agreement by the respondent. The Tribunal accepts the well corroborated evidence of the respondent and finds that the premises were reasonably secure. Most of the authorities referred to by the applicant concerned lockable windows and so can be distinguished here; the most relevant case, Aye v ACT Housing [2001] ACT RTT 13, concerned a lock that was known by the landlord to be broken and not fixed until after a burglary over two weeks later, and can be distinguished from this case. In this case the records of the respondent show that where an incident was reported to the respondent then the respondent responded promptly. The evidence does not support the applicant’s contention that all the alleged incidents were reported to the respondent for example the alleged assault and robbery in July 2013. The Tribunal finds that the applicant’s behaviours and medical conditions contributed to her perceptions about her premises being unsafe. For example, the evidence shows that she frequently has difficulty accessing her property with keys[87], and that the amount of her personal property positioned at doorways has prevented some improvements to doors being undertaken by the respondent.[88]

[87] Attachment A, History of works for the premises, Ms Jacqui Daniel’s witness statement, dated 19 August 2016

[88] Exhibit A6, ADACAS case notes, case note by Ms Peruzzi, dated 7 June 2016

44.In response to the applicant’s contentions set out in paragraph 16, concerning electrical problems resulting in blackouts 3- 4 times/year between 2012 and 2016, the Tribunal finds that there was no breach of terms of the agreement by the respondent. The Tribunal finds that electrical problems raised with them by the applicant were promptly and appropriately dealt with, and the switchboard has been checked and certified to be safe on many occasions and has been safe throughout the period relevant to this matter. The Tribunal finds that the evidence shows that the applicant’s behaviour, namely continual overloading of the circuits through over-usage of powerboards and electrical goods, is a significant contributor to the recurring electrical problems she complains of, and that this has been communicated to her many times. For example, the ADACAS case notes on 28 September 2012 refer to situations when the applicant “overloads the circuits” and that “she has been shown how to turn [the main switch] back on and how to make sure that she doesn’t overload the system – no more than 2 heat producing appliances in each zone of the house…”[89] The evidence is that despite the applicant being shown the latter, she does not follow this advice. The Tribunal accepts that the current switchboard is adequate for the premises and it is not necessary as a term of the agreement for it to be upgraded. While there is a process for the applicant to seek an upgraded switchboard, which involves her paying for the upgrade, this has not occurred because the applicant has not requested it.

[89]   Exhibit A6, ADACAS case notes, case note by Fiona May dated 28 September 2012; Spotless Work Order 10359142, dated 7 June 2016 has a note “Impossible to do anything to the sliding door there is no way to work too much stuff around…”

45.In response to the applicant’s contentions concerning fires on the cooktop and in the lounge room (refer to paragraphs 17 to 19) , the Tribunal finds no breach of the terms of the agreement by the respondent. The Tribunal accepts that the applicant believes the fires occurred, and certainly she has reported the fires to some people including her medical practitioners. There is no corroboration of the fires having occurred, as the respondent’s evidence emphasises. Indeed, Ms Peruzzi was the applicant’s ADACAS support worker when the two alleged fires, in the kitchen in November 2015 and the loungeroom in February 2016, occurred. In the case of both fires, Ms Peluzzi attended shortly after the alleged fires and said in her oral evidence that she saw no evidence of fire or smoke damage.[90] The ADACAS case notes also confirm that when Ms Peruzzi attended the applicant’s premises on 1 March 2016, she and her co-worker could see no evidence of fire damage.[91] The applicant’s claim that she reported the fires to the respondent at the time they occurred is not corroborated by the respondent’s records. Indeed in her report to ADACAS the applicant advised them that there was a fire (in the kitchen) and that the “ceiling has collapsed”, but the ADACAS case notes confirm that upon contacting the respondent the ADACAS worker realised that the respondent had not been advised of a fire by the applicant but rather she had just advised them that the smoke alarm needed fixing, which they promptly did.[92] The work order, to fix the smoke alarm on 20 November 2015, a day after the alleged fire in the kitchen, has a photo of the cooktop area attached – it shows no fire damage but does show a partially melted plastic tray.[93]The cases cited by the applicant in regard to the fires are distinguished – unlike those authorities, in this case the Tribunal finds that the fires did not occur, the cooktop has been working and the switchboard is not defective.

Issue (b): What if any remedies including compensation are appropriate for the respondents?

[90] Oral evidence Ms Peruzzi, 21 September 2016

[91] Exhibit A6, ADACAS case notes, case note by Michelle Peruzzi dated 1 March 2016

[92] Exhibit A6, ADACAS case notes, case note by Ms Peruzzi, dated 20 November 2015

[93] Respondent’s response, dated 19 August 2016, annexure K, Spotless work order 9534233 dated 20 November 2015

46.Given the findings by the Tribunal that there are no breaches of the terms by the respondent, the issue of what remedies are appropriate has no relevance.

Orders

47.The Tribunal orders that:

1.The application is dismissed.

2.A person must not publish any information about this matter or any evidence provided during the proceedings that will identify the name of the applicant.

………………………………..

President G Neate

Delivered for and on behalf of the Tribunal

HEARING DETAILS

FILE NUMBER:	RT 3/2016
PARTIES, APPLICANT:	CM
PARTIES, RESPONDENT:	Commissioner for Social Housing
COUNSEL APPEARING, APPLICANT	N/A
COUNSEL APPEARING, RESPONDENT	N/A
SOLICITORS FOR APPLICANT	Lexicon Legal
SOLICITORS FOR RESPONDENT	ACT Government Solicitor
TRIBUNAL MEMBERS:	Senior Member L Beacroft
DATES OF HEARING:	2 & 21 September 2016