Dwyer v Department of Justice and Attorney General (NSW)

[2017] NSWCATCD 15

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Dwyer v Department of Justice and Attorney General (NSW) [2017] NSWCATCD 15

Hearing dates:

8 February 2017

Date of orders:

08 February 2017

Decision date:

08 March 2017

Jurisdiction:

Consumer and Commercial Division

Before:

J C Thompson, General Member

Decision:

(1) The name of the respondent is amended to: Department of Justice and Attorney General (NSW).

(2)  The respondent is to repair or replace the air conditioner in the lounge room of the premises by 23 February 2017.

 (3)  The respondent is to pay the tenant the sum of $300.00 on or before 8 March 2017, on account of the unavailability of a serviceable air-conditioner in the lounge room of the premises over the period 1 December 2016 to 8 February 2017.

(4)  The applicant is granted an abatement of rent at the rate of $25.00 per week, from $180.00 to $155.00 per week, for the period from 9 February 2017 until the earlier of the date upon which the air conditioner is repaired or replaced, or 28 February 2017, a maximum of 20 days. 

Catchwords:

Compensation for unavailability of serviceable air-conditioner; rebate of rent until working air-conditioner provided.

Legislation Cited:

Residential Tenancies Act 2010, ss. 43, 44, 45, 52, 53, 63, 65 and 187.

Cases Cited:

Casey Harris v Aboriginal Housing Office
Unreported SH14/51257; 29 January 2015; Member K. Ross.
Glassford & Ors v Lawmucot Pty Ltd t/a Murray Haven (Residential Parks) [2008] NSWCTTT 1224

Category:

Principal judgment

Parties:

Applicant - Kym Dwyer
Respondent - Department of Justice and Attorney General (NSW)

Representation:

Applicant - Applicant in person.
Respondent - Mr C. M. Noye, employee of Australian Wool & Pastoral Agency Ltd trading as Schute Bell Whitbread & Co, Real Estate Agent.

File Number(s):

RT 17/05412

Publication restriction:

Nil

REASONS FOR DECISION

1. The applicant is the tenant of residential premises at Bourke in Western New South Wales.

2. The respondent is the landlord of the premises.

3. Judgment was given, in part favourable to the applicant on 8 February 2017 when the matter was dealt with ex tempore. The applicant has requested written reasons.

4. By Application lodged 3 February 2017 and amended on 7 February 2017 the applicant sought orders arising from her claim that air conditioners in the premises were unsuitable and/or defective such that they were incapable of reducing the inside temperature of the premises to a liveable level. The tenant claimed orders:

1. (a) pursuant to s. 65(1)(a) of the Residential Tenancies Act 2010 (“the Act”), for the landlord to carry out repairs;

2. (b) pursuant to s. 44(1)(b) of the Act, that the rent payable is excessive due to the reduction or withdrawal of any goods, services or facilities provided with the residential premises, seeking a reduction of $50.00 per week for the period from 1 December 2016 “until such time that the air conditioning units are replaced or the end of Summer being 28/2/2017”; and

3. (c) pursuant to s. 45 of the Act, that there be “a full rental reduction of $180.00p/w as of 25/1/2017 being the date myself and my 2 small children have been unable to inhabit the premises due to the internal temperature at the property as a result of insufficient cooling”.

5. In summary, the applicant seeks an order to have the air-conditioning units replaced; a rent reduction of $50.00, from $180.00 to $130.00, per week for the period from 1 December 2016 to 24 January 2017; and a rent reduction of $180.00, from $180.00 to $0, for the period from 25 January 2017 to the end of Summer 2017, to be taken as 28 February 2017, or the date when the premises are made habitable with effective air-conditioning, whichever is earlier.

6. It being accepted by the parties and the Tribunal that there exists a relationship of landlord and tenant, the Tribunal has jurisdiction.

7. There is no contest between the parties as to the facts. The only issues centre on what relief, if any, the Tribunal should grant the tenant against the landlord.

Background

8. On 1 August 2012 the respondent and its agent entered into a Residential Exclusive Management Agency Agreement. Therein the Principal, the landlord, was named as “Dept of Justice & Attorney General”. The property nominated was a residential property in Bourke.

9. On 8 April 2016 the tenant entered into a tenancy agreement utilising the Standard Form Residential Tenancy Agreement promulgated for the purpose by the NSW Department of Fair Trading pursuant to Residential Tenancies Regulation 2010 Standard Form Agreement (Clause 4(1)). The term of the agreement was three months, from 8 April to 7 July 2016, with a rent of $180.00 per week. At the end of the term the tenancy continued on the same terms, as described in Note 2 to the RTA.

10. In the RTA the landlord was named “Atterney [sic] General”, an error which was repeated in the form of application which is now before the Tribunal. No doubt in reproducing the error the applicant was being very precise as to the naming of the landlord in the RTA. An amendment to the name of the respondent landlord shall be dealt with by an order at the end of these Reasons.

11. Also completed by the parties on 8 April 2016 was a form headed “Residential Tenancies Regulation 2010 Schedule 2: Condition report”. That report has provision for each party to note the condition of the premises at the start of the tenancy and at the end of the tenancy.

12. It is apparent from the number and detail of the notes made by the applicant as tenant that she inspected the premises thoroughly. Amongst the notes against “Lounge Room” was “Air con leaking”. That is the only reference to air-conditioning in the Condition Report.

13. The Summer of 2016-2017 in Bourke was very hot (16 days in a row above 40 deg. C) and often humid.

14. When the applicant came to use the air-conditioners for cooling of the premises, she found that they were inadequate. By design, the evaporative air-conditioner was unusable at times of humidity (apparently because evaporative air conditioners use water as a cooling agent and when in use increase the humidity in the rooms serviced) and unable to cope with very high temperatures (apparently because the water used as a cooling agent itself was hot).

15. The tenant found that the reverse-cycle air-conditioners had little effect on the air-temperature inside the premises. As well, that in the lounge remained defective, as it had been since the commencement of the tenancy. It had not been repaired to stop it leaking, so could not be used at all or could be used only with the discomfort occasioned by the leaking.

16. On 25 January 2017 the applicant contacted the agent, complaining about the lack of cooling and requested that upgrded air conditioners be installed. The agent, in turn, contacted an air conditioning technician who attended within a few days. He informed the applicant and the respondent that: all air conditioning units were working as they should; no evaporative air conditioner could cope with the heat and humidity being experienced at that time in Bourke; and the reverse-cycle units were under-size for the demands placed on them.

17. On 30 January 2017 the landlord’s representative informed the agent that “At this stage we are not proposing to upgrade the air-conditioning”. The agent conveyed that response to the tenant.

18. On 3 February 2017 the applicant lodged her application seeking the relief described at pars 4 and 5 (above). By email of 5 February 2017 the applicant sought an urgent hearing. As it transpired, the Tribunal was in a position to accede to that request because a sitting in Bourke had been arranged for 8 February.

19. On that day the parties were unable to resolve the dispute by themselves and conciliation was unsuccessful. The matter proceeded to hearing.

The hearing

20. The applicant gave evidence in person and relied also on two photographs of air conditioners, correspondence between her and the agent, a report from the air conditioning technician, and Bureau of Meteorology weather observations at Bourke Airport for the period 1 January to 6 February 2017 together with BoM statistics for that site over all the years of data. The latter document shows that for the months December to February: mean temperatures exceeded 35 deg. C the highest monthly mean was over 40 deg. C; and the highest daily temperature recorded was 48.3 deg. C.

21. The agent tendered the property management and tenancy documents and BoM records for January 2016 and January and February 2017. He did not dispute any of the applicant’s evidence or its admissibility. His position was simply that the landlord was not disposed to upgrade the air conditioning as the applicant wanted.

22. The applicant handed up her helpful “Submissions of Applicant” which detailed the bases of her claims. She referred to the matter of Casey Harris v Aboriginal Housing Office SH 14/51257, an unreported decision of Member K. Ross delivered on 29 January 2015. The applicant provide the Tribunal with a copy of the Tribunal’s notice of order document bearing that date and notifying Ms Harris of the details of the work order made by, and the reasons for the decision of, Member Ross.

23. In that case the applicant rented premises in Wilcannia. There was no air conditioning provided and the respondent had a policy of not air conditioning its premises. The applicant sought an order that the respondent permit her to install her own air conditioner, without any make-good requirement were she to remove the air conditioner at the end of the tenancy. Alternatively, the applicant sought a rent abatement during the Summer months when the premises were, she said, uninhabitable.

24. Member Ross was “satisfied that, for the subject premises to be fit for habitation, they must contain appropriate cooling”.

25. Member Ross was not satisfied that the Tribunal had the power to make an order as sought by the tenant. Instead, the member made an order that the respondent “provide appropriate cooling of the premises to ensure that they are inhabitable”.

26. The applicant sought to rely on the decision in Harris in her case.

27. The facts in Harris differ from those of the present case in several respects. Here -

1. Air conditioners were provided, although they were not up to the task.

2. The short (three months) term of the RTA had expired by the middle of Winter, well before Summer, and either party was free to terminate the agreement, the tenant to find alternative accommodation with air conditioning more to her liking, the landlord to locate a tenant accepting of the existing air conditioners.

3. It appears from the Ingoing Condition Report, and there is no evidence to the contrary, that at the commencement of the tenancy the applicant did not check or enquire as to the capacity of the air conditioners to cope with the usual hot Summer climate likely to be experienced in Bourke. The Tribunal finds that the tenant made no enquiries as to the capacity of the air conditioners to cool the premises and accepted the premises in their existing state.

4. The tenant elected to rent the premises as presented (subject to the leaking air conditioner being repaired or replaced), notwithstanding that there were publicly available Bureau of Meteorology records - some of which she put into evidence, some tendered by the respondent - showing that in January 2016 there were 18 days on which the maximum temperature was above 35 deg.C and, of those, seven were above 40 deg. C. The average relative humidity was actually higher in January 2016 (48 per cent) than it was in 2017 (43 per cent). So too were the highest and lowest average relative humidities.

5. The applicant had made no offer or attempt to install removable air-conditioners of her own, e.g. either in-window or free-standing.

28. With respect to Member Ross, if the decision in Harris is intended to stand for the proposition that in all cases for premises in hot areas “to be fit for habitation, they must contain appropriate cooling”, I disagree.

29. Bearable temperatures are matters of individual taste. What is unbearably hot to some might be acceptably balmy to others. In this case, the tenant was aware of the availability of some cooling facilities. It was up to her to determine whether or not they were adequate to produce the level of cooling she would desire. If she thought not, it was for her to negotiate with the landlord’s agent before taking up the tenancy, which she did not, or, having accepted the premises as is, which she did, installed her own air conditioners to cool the premises to her liking.

Applying the legislation

30. I turn now to the provisions of the Act relied upon by the applicant, and other provisions which are relevant to the consideration of the application.

31. Section 43 of the Act is, relevantly, as follows -

Rent reductions

(1)   Reduction in goods, services or facilities

The tenant may make a written request to the landlord at any time for a reduction in rent if the landlord reduces or withdraws any goods, services or facilities provided with the residential premises, even if those goods, services or facilities are provided under a separate or a previous contract, agreement or arrangement.

…

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

32. Section 44 of the Act is, relevantly, as follows -

Tenant’s remedies for excessive rent

(1)   Excessive rent orders

The Tribunal may, on the application of a tenant, make any of the following orders:

(b)   an order that rent payable under an existing or proposed residential tenancy agreement is excessive, having regard to the reduction or withdrawal by the landlord of any goods, services or facilities provided with the residential premises and that, from a specified day, the rent for residential premises must not exceed a specified amount.

…

(3)   Applications on withdrawal of goods or services

A tenant may, before the end of a tenancy, make an application that the rent is excessive, having regard to the reduction or withdrawal of any goods, services or facilities provided with the residential premises, even if those goods, services or facilities were provided under a separate or a previous contract, agreement or arrangement.

…

(5)   The Tribunal may have regard to the following in determining whether a rent increase or rent is excessive:

(a)   the general market level of rents for comparable premises in the locality or a similar locality,

(b)   the landlord’s outgoings under the residential tenancy agreement or proposed agreement,

(c)   any fittings, appliances or other goods, services or facilities provided with the residential premises,

(d)   the state of repair of the residential premises,

(e)   the accommodation and amenities provided in the residential premises,

(f)   any work done to the residential premises by or on behalf of the tenant,

(g)    when the last increase occurred,

(h)   any other matter it considers relevant (other than the income of the tenant or the tenant’s ability to afford the rent increase or rent).

(6)   Effect of excessive rent order

An order by the Tribunal specifying a maximum amount of rent:

(a)   has effect for the period (of not more than 12 months) specified by the Tribunal, and

(b)   binds only the landlord and tenant under the residential tenancy agreement or proposed residential tenancy agreement under which the rent is payable.

33. Following Glassford & Ors v Lawmucot Pty Ltd t/a Murray Haven (Residential Parks) [2008] NSWCTTT 1224, I accept that sections 43(1) and 44 apply because “any goods, services or facilities provided” is to be read “any goods, services or facilities provided or to be provided”. I find that the notation in the Ingoing Condition Report that the lounge room air conditioner was leaking to be sufficient “written request”.   

34. Accordingly, sections 43(1) and 44(1)(b) and (3) provide grounds for the applicant to claim a reduction in rent.

35. Section 52 of the Act is, relevantly, as follows -

Landlord’s general obligations for residential premises

(1)   A landlord must provide the residential premises in a reasonable state of cleanliness and fit for habitation by the tenant.

…

…

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

36. Whilst the applicant complained about the state of cleanliness of the premises at the commencement of the tenancy, she made no claim in that respect. She does complain that the leaking air conditioner in the lounge room has not been repaired, although the landlord’s agent has been aware of the defect since the commencement of the tenancy.

37. I find that although the leaking air conditioner has affected the fitness for habitation of the premises, I do not find that it has rendered the premises uninhabitable.

38. Section 63 of the Act is, relevantly, as follows -

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.

39. I find that in not repairing or replacing the air conditioner in the lounge room, the landlord failed in its obligation “to provide and maintain the residential premises in a reasonable state of repair, having regard to” the stated variables.

40. Section 65 of the Act is, relevantly, as follows -

Tenants remedies for repairs

(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)   The Tribunal must not determine that a landlord has breached the obligation unless it is satisfied that:

(a)   the landlord had notice of the need for the repair or ought reasonably to have known of the need for the repair, and

(b)   the landlord failed to act with reasonable diligence to have the repair carried out.

…

…

41. I find that: in not repairing the lounge room air conditioner the landlord has breached its obligation under s. 63 of the Act to provide and maintain the premises in a reasonable state of repair; the landlord had notice of the need for the repair since the commencement of the tenancy; and the landlord has failed to act with reasonable diligence to have the repair carried out.

42. Section 187(1) of the RTA prescribes the orders which may be made by the Tribunal. Relevantly -

Orders that may be made by Tribunal

(1)   The Tribunal may, on application by a landlord or tenant or other person under this Act, or in any proceedings under this Act, make one or more of the following orders:

…

…

(c)   an order for the payment of an amount of money,

(d)   an order as to compensation,

(e)   an order that a party to a residential tenancy agreement perform such work or take such other steps as the order specifies to remedy a breach of the agreement,

…

…

…

…

…

(2)   Without limiting the Tribunal’s power to make an order as to compensation, the Tribunal may order compensation to be paid for the following:

…

(b)   any other breach of a residential tenancy agreement,

…

...

(4)   The Tribunal must not make an order for:

(a)   the payment of an amount that exceeds the amount (if any) prescribed by the regulations for the purposes of this section, or

(b)   the performance of work or the taking of steps the cost of which is likely to or will exceed the amount (if any) prescribed by the regulations for the purposes of this section.

Conclusion

43. The applicant has a legitimate and well-founded complaint that the landlord has been and is in breach of section 63 in not repairing or replacing the leaking air conditioner in the lounge room. Accordingly, being satisfied that the preconditions of section 65(3) are present, pursuant to section 65(1) the Tribunal shall make a remedial order in respect of the lounge room air conditioner and also in respect of the loss of amenity occasioned by the unrepaired leaking air conditioner.

44. The tenant is entitled to an order that the air conditioner be repaired or replaced.

45. The tenant is entitled to an order for compensation to her for the loss of amenity arising from the unavailability of a serviceable air conditioner in the lounge room for that part of Summer up to the date of hearing. I accept the applicant’s date of commencement of Summer as being 1 December 2016. I consider the applicant’s claim for a reduction in rent of $50.00 per week to be excessive, given my findings above and the fact that only one of the air conditioners was unserviceable. The period 1 December 2016 to 8 February 2017 is 10 weeks. I round that up to 12 and allow $300.00.

46. The applicant is also entitled to an abatement of rent of $25.00 per week for the continuation of that loss of amenity from 9 February 2017 until the earlier of the date upon which the air conditioner is repaired or replaced, or 28 February 2017, which the applicant nominates, and I accept, as the end of Summer. That is a maximum of 20 days.

ORDERS

1. The name of the respondent is amended to: Department of Justice and Attorney General (NSW).

2. The respondent is to repair or replace the air conditioner in the lounge room of the premises by 23 February 2017.

3. The respondent is to pay the tenant the sum of $300.00 on or before 8 March 2017, on account of the unavailability of a serviceable air-conditioner in the lounge room of the premises over the period 1 December 2016 to 8 February 2017.

4. The applicant is granted an abatement of rent at the rate of $25.00 per week, from $180.00 to $155.00 per week, for the period from 9 February 2017 until the earlier of the date upon which the air conditioner is repaired or replaced, or 28 February 2017, a maximum of 20 days.

J. C. Thompson

General Member

Civil and Administrative Tribunal of New South Wales

8 March 2017

**********

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: 28 April 2017