Cox v Compass Housing Services Co Pty Ltd

[2023] NSWCATCD 164

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Cox v Compass Housing Services Co Pty Ltd [2023] NSWCATCD 164

Hearing dates:

7 December 2023

Date of orders:

14 December 2023

Decision date:

14 December 2023

Jurisdiction:

Consumer and Commercial Division

Before:

K Ross, Senior Member

Decision:

(1) The Tribunal declares that the rent payable by Mr Cox is excessive, taking into account the withdrawal of facilities and services caused by the landlord’s failure to keep the premises in repair.

(2) The rent is not to exceed 40% of the rent otherwise payable by the tenant, from 4 May 2023, until all of the repairs are completed, or 4 May 2024, whichever first occurs.

(3) By 21 December 2023 Compass Housing Services Co Ltd is to pay to Taylor Cox the sum of $5,400

• $400 as compensation for the damage to his washing machine, and

• $5000.00 compensation for distress

(4) By 31 January 2024 Compass Housing Services Co Ltd is to provide to Taylor Cox a replacement clothes dryer, of equivalent size to the one damaged by water ingress and removed by the building manager.

(5) Compass Housing Services Co Ltd is to immediately cause the following repairs to be carried out in a proper and workmanlike manner:

• Investigate and repair leak under kitchen sink to prevent ingress into the power outlet under sink.

(6) Compass Housing Services Co Ltd is to cause the following repairs to be carried out in a proper and workmanlike manner, on or before 31 January 2024:

• Paint flaking from plaster patches on bathroom ceiling (where not under coated) needs repainting.

• Repair or replace bathroom light, hallway light, and main room light

• Replace soap holder in bathroom.

• Replace toilet cistern.

• Repair or replace air conditioner.

• Repair or replace bathroom exhaust fan.

• Repair or replace kitchen range hood exhaust.

Catchwords:

RESIDENTIAL TENANCIES: Compensation for landlord’s failure to repair – non economic loss – ongoing failure to repair

Category:

Principal judgment

Parties:

Taylor Cox
Compass Housing Services Co Ltd t/as Home in Place

File Number(s):

SH 23/39167

Publication restriction:

Unrestricted

REASONS FOR DECISION

1. Pursuant to an agreement dated 20 October 2014 (the RTA) the applicant has been a tenant of premises comprising a bed sit apartment in Scott Street Newcastle, leased to him by the respondent (Compass). He complains that over the past two years Compass has failed to act with due diligence in respect of repair issues which he has reported. Whilst some repairs have been completed since these proceedings were commenced others remain outstanding. He seeks orders in respect of the outstanding repairs, together with a rent reduction and compensation for the distress and discomfort which he has suffered as a consequence of having to continues to live in unsafe premises.

2. Compass concedes that there has been delay in completing the repairs. Whilst initially asserting that Mr Cox had refused access for repairs, Compass conceded that in fact Mr Cox had permitted access on numerous occasions. Compass does not oppose the Tribunal making an order for the outstanding repairs to be completed but opposes the order for the maximum amount of compensation ($15000) which the applicant seeks.

3. I make the following findings of fact, which are generally not in dispute:

1. Approximately two years ago the applicant reported that the air conditioner was not operating correctly.

2. Approximately 12 months ago Compass agreed to replace the air conditioner. It has not been replaced.

3. More recently Compass indicated that it would clean the air conditioner, but that work has also not been carried out.

4. On 4 May 2023 the tenant reported that there was water leaking from the exhaust fan in the laundry.

5. On 29 June 2023 Compass reported the leak to the strata manager. There is no evidence that Compass advised Mr Cox of its email to the building manager or gave him 2 days’ notice for access as required by clause 23.6 of the RTA.

6. On 3 July 2023 the building manager sent an email to Compass, stating that the tenant had reported the issue to them directly “a few weeks ago”, but had not allowed access when the building manager knocked on the door. He alleged that the tenant had not sent photos or booked a follow up inspection as requested. He said that the team had tried to organise access a number of times over the weekend without luck.

7. On 3 July 2023 Compass advised the building manager that a message had been left with Mr Cox, telling him that he needed to allow access.

8. On 11 July 2023 the building manager attempted to access the premises. Mr Cox conceded that he had forgotten about the appointment.

9. The building manager’s handyman attended the premises on 12 July 2023 but could not detect a leak.

10. On 19 July 2023 the tenant reported to Compass that the leak had occurred again and had damaged his dryer.

11. On a date which is not in evidence a hole was cut in the laundry ceiling.

12. On 23 August 2023 the source of the leak was found to be a leaking tap in the unit above, which was repaired.

13. On 25 August 2023 the tenant lodged this application, seeking the following repairs:

“* Cut out ceiling in laundry to be repaired and painted and water damaged exhaust fan to be replaced.

* Water damaged (fire hazard) clothes dryer included in property be replaced.

* Recently purchased (by tenant) water damaged washing machine (also rendered fire hazard) be replaced.

* Paint flaking from plaster patches on bathroom ceiling (where not under coated) needs repainting.

* Bathroom light, hallway light, main room light to be replaced (globes are fixed to light and unable to be removed/ replaced).

* Soap holder (has eroded) has fallen off shower tiles (to be replaced).

* Toilet cistern be replaced (top left leaning on wall by plumbers fell and broke) button did not work and was removed by plumbers and was informed the entire toilet needs to be replaced. I have since been told by building management this is incorrect and only the cistern needs to be replaced.

* Air conditioner (previously told by appointed technician needs to be replaced). It fluctuates between cold and hot air automatically when on cold setting and is full of mould and irritates my lungs when used.

* Leak from kitchen sink/ rusty water coming from power outlet under sink, fire hazard be repaired/ replaced.

* Bathroom exhaust fan replaced if possible, works but very poorly.

* Range hood exhaust (kitchen) be replaced if possible, works but very poorly.”

14. On 28 September 2023 the parties attended conciliation. Compass agreed to carry out certain repairs and to inspect the other issues complained of.

15. At the date of the hearing, the cut out ceiling in laundry had been repaired and painted and the water damaged exhaust fan had been replaced. Some bulbs had been replaced (one by an electrician and others by Compass’ employee Mr Milford). No other repairs had been carried out.

4. I am satisfied that Compass has breached the agreement with Mr Cox, by failing to keep the premises in good and proper repair. I am satisfied that all of the repairs are matters which have been reported to Compass. Compass has failed to act with due diligence to address the issues raised.

5. In respect of the submission made by Compass that Mr Cox frustrated the repairs by refusing to allow access, I accept his evidence that he allowed access on all but 2 occasions. He said that he suffers from PTSD and a dissociative disorder and sometimes loses track of the days. I accept that he did not intend to frustrate the repairs. I note that there is evidence that Compass frequently did not comply with its obligations to give Mr Cox at least 2 days’ notice of when access would be required. Mr Cox cannot be held to have refused access in these circumstances.

6. The photo of the power socket under the kitchen sink shows what appears to be water stains around the electrical plug. As I indicated at the hearing, this is a repair which is urgent as if water is entering the power socket it places Mr Cox at immediate danger of electrocution. I note that Mr Milford undertook to address that repair immediately after the hearing by engaging an emergency plumber and/or electrician if Compass’ in house contractors were unable to attend.

7. Compass’s representative Mr Milford conceded that all of the repairs raised by Mr Cox require attention. He expressed frustration that Compass’s in house contractors had failed to attend to the issues in a timely fashion. However, this does nothing to address the effect which the failure to attend to the repairs has had (and continues to have) on Mr Cox. Mr Milford said that he had been told that the repairs had been completed, but he accepted Mr Cox’s evidence that they have not. He said that he could give no indication of when they might be able to be completed.

8. I will order that Compass attend to the repair under the sink immediately. I trust that by the time these reasons are received it will have been completed. Mr Cox may seek to renew the proceedings and seek an urgent hearing if it has not. Bearing in mind the time of the year I will order that the rest of the repairs be carried out by the end of January 2024.

9. Compass had previously indicated to Mr Cox that neither the dryer nor the washing machine would be replaced, because he could claim these items on his own insurance. This is to misunderstand the landlord’s obligations. The dryer was included as a fixture and fitting and is owned by the landlord. It has been damaged through no fault of the tenant and removed from the premises. Compass are liable to compensate Mr Cox for the withdrawal of that service and must replace the dryer without further delay.

10. The washing machine was owned by Mr Cox. He said that it was about 8 months old and cost about $400. It has been damaged as a direct consequence of the landlord’s failure to repair the leak from the laundry ceiling when it was first reported. Mr Cox is entitled to compensation for the loss of the washing machine. I will order Compass to pay him the sum of $400 forthwith.

11. I turn next to consider what compensation Mr Cox should receive for the effect which the landlord’s failure to repair has had on him. He has not been able to enjoy the premises as he is entitled to under the RTA. There has been a withdrawal of services in relation to the air conditioner (2 years) and the dryer (since 19 July 2023). He has been largely unable to use the laundry for its intended use (because of the failure to repair and also because of the refusal to compensate Mr Cox for the damage to the washing machine). He did not have proper lighting from 30 June 2023 until sometime in November and all but one of the lights have still not been checked or repaired by an electrician. The toilet has been without a lid for 6 months.

12. Taking all these issues into account I will allow a 60% rent reduction from 4 May 2023, so that the rent does not exceed 40% of the rent usually payable, to continue until the repairs are completed, or 4 May 2024, whichever first occurs. This amounts to a rent credit of $4416.00 to today’s date and will continue until all the repairs have been completed, or for 12 months as that is the maximum period for which a rent reduction can be given.

13. In addition, Mr Cox seeks compensation of $15000 for the effect that the failure to repair has had on him. He has been particularly stressed because some of the repairs required are to prevent water entering electrical appliances. He is placed at risk of electrocution, a risk which was continuing up until the hearing (and continues until the kitchen repair is completed). I accept that this has caused Mr Cox much distress. I am not satisfied however that he is entitled to the sum of $15000 in addition to the compensation by way of rent reduction. I will allow compensation of $5000 for the effect of the breach on Mr Cox.

Orders

1. The Tribunal declares that the rent payable by Mr Cox is excessive, taking into account the withdrawal of facilities and services caused by the landlord’s failure to keep the premises in repair.

2. The rent is not to exceed 40% of the rent otherwise payable by the tenant, from 4 May 2023, until all of the repairs are completed, or 4 May 2024, whichever first occurs.

3. By 21 December 2023 Compass Housing Services Co Ltd is to pay to Taylor Cox the sum of $5,400:

• $400 as compensation for the damage to his washing machine, and

• $5000.00 compensation for distress

4. By 31 January 2024 Compass Housing Services Co Ltd is to provide to Taylor Cox a replacement clothes dryer, of equivalent size to the one damaged by water ingress and removed by the building manager.

5. Compass Housing Services Co Ltd is to immediately cause the following repairs to be carried out in a proper and workmanlike manner:

• Investigate and repair leak under kitchen sink to prevent ingress into the power outlet under sink.

6. Compass Housing Services Co Ltd is to cause the following repairs to be carried out in a proper and workmanlike manner, on or before 31 January 2024:

• Paint flaking from plaster patches on bathroom ceiling (where not under coated) needs repainting.

• Repair or replace bathroom light, hallway light, and main room light

• Replace soap holder in bathroom.

• Replace toilet cistern.

• Repair or replace air conditioner.

• Repair or replace bathroom exhaust fan.

• Repair or replace kitchen range hood exhaust.

**********

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: 08 August 2024