Frey v Commissioner for Social Housing (Residential Tenancies) - [2024] ACAT 87

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

FREY v COMMISSIONER FOR SOCIAL HOUSING (Residential Tenancies) [2024] ACAT 87

RT 519/2024
Catchwords: RESIDENTIAL TENANCIES – breach of standard terms of Residential Tenancies Act 1997 – interference with reasonable peace, comfort or privacy of the tenant in the use by the tenant of the premises – whether lessor carried out urgent repairs as needed – whether any of the breaches diminished the tenants use and enjoyment of the property – compensation to the tenants for experience loss – rent reduction
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 6, 7
Housing Assistance Act 2007 part 4
Residential Tenancies Act 1997 ss 38, 71, 83, sch 1, standard terms 3, 52, 55, 57, 59, 60

Cases cited:Halcombe v Hitchman [2018] ACAT 5
Irena Peters v Commissioner for Housing for the ACT [2006] ACTRTT 6
Withers-Norris v Pastrello [2016] ACAT 95
Young v Chief Executive Officer (Housing) [2023] HCA 31

Tribunal:Member P Hatami

Date of Orders:  22 November 2024
Date of Reasons for Decision:      22 November 2024
Date of Publication:  29 November 2024
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          RT 519/2024

BETWEEN:

MAREE FREY
Applicant/Tenant

AND:

COMMISSIONER FOR SOCIAL HOUSING
Respondent/Lessor

TRIBUNAL:Member P Hatami
DATE:22 November 2024

ORDER

The Tribunal orders that:

The respondent is liable to pay compensation to the applicant for loss suffered by the applicant as a result of the respondent’s failures to make repairs and interference with the reasonable peace, comfort, and privacy of the applicant in the use of the premises as follows:
(a)$4,000 general damages for loss of enjoyment of the use of the premises;
(b)$12,000 for failure to address maintenance issues which caused water leak;
(c)$5,000 for failure to repair the fence;
(d)$2,200 for failure to address mould growing in the children’s bedroom (bedroom 2) and kitchen/dining area;
(e)$700 for failure to prune the overhanging tree;
(f)$550 for loss and damage to the applicant’s personal property.
The respondent must pay the sum of $24,450 to the applicant into the applicant’s nominated bank account by 20 December 2024.
The respondent is to apply a 100% rent reduction from 2 September 2024 until the last of the following conditions are met:
(a)The mould has been removed and the ceilings in bedroom 2 and the kitchen have been replaced, and
(b)A report must be filed with the Tribunal within 21 days of the completion of the work in (a) from a mould expert certifying that the property is no longer affected by mould, and
(c)The fence is replaced with a new fence, and
(d)The water leak has been fully resolved, and the roof and fascia are replaced and made good.
Order 3 expires at the earliest of:
(a)2 September 2025; or
(b)the date that the applicant is permanently relocated to new accommodation.
The application is otherwise dismissed.

………………………………..

Member P Hatami

REASONS FOR DECISION

This is an application by Maree Frey for compensation and rent reduction pursuant to sections 71 and 83 of the Residential Tenancies Act 1997 (the RT Act). Maree Frey, with her four children, has rented their home in Kambah ACT from the Commissioner for Social Housing (the Commissioner) since August 2009. The Commissioner is responsible for providing housing assistance on behalf of ACT government to individuals who meet the eligibility criteria for such assistance.
The framework for the allocation of social housing is outlined in the Housing Assistance Act 2007. Part 4 of that Act enables the Minister to approve a ‘housing assistance program’ that governs the allocation and management of social housing stock in the ACT. Once a property has been allocated, parties enter a residential tenancy agreement and their conduct, in so far as the tenancy is concerned, is governed by the RT Act.

Eligibility for social housing

To be eligible for social housing, applicants must meet certain eligibility criteria. Once deemed eligible, an applicant for social housing is allocated a place on the social housing waiting list. An applicant’s position on the list is determined by what ‘needs category’ they are in. The three ‘needs categories’ are standard, high needs, and priority.
The Commissioner has limited housing stock and the waiting time for allocation can be long. Properties are allocated through an assessment of eligibility, urgency of need, and suitability of the property to an applicant’s circumstances. Individuals who can demonstrate an urgent need are placed on either the ‘high needs’ or ‘priority’ list and are allocated a property more quickly than individuals who are on the standard list.
Eligibility Criteria
To be eligible for housing through the Commissioner, Maree Frey must have met the eligibility criteria at the time of application and allocation.[1] The criteria for early allocation are listed below:
[1] For more information, see Eligibility for Housing Assistance Policy, Housing ACT, accessed at qualify for Early Allocation a registered applicant will need to demonstrate housing need that is more urgent than that of other applicants …
Priority Housing allocation may be granted to an applicant who meets a range of complex needs including:
•       Homelessness;
•       Mental health or medical issues;
•       Disability, including frail aged;
•       Women and children escaping domestic violence;
•       Indigenous persons facing complex issues; and
•       Children at risk, including their parents and carers.
High Needs allocation may be granted to an applicant who demonstrates one or more risk factors including:
•       private rental barriers, such as extreme affordability or ongoing discrimination;
•       special needs that cannot be catered for through the private housing market; and
•       severely overcrowded living conditions placing children at risk.[2]
[2] Eligibility for Housing Assistance Policy, Housing ACT, accessed at >
It follows that many of the respondent’s tenants, including the Maree Frey, face complex disadvantages. At a minimum, social housing tenants subsist on limited income which precludes them from competing in the private rental market. This means that Ms Frey and her children do not have many other viable alternatives for housing and are limited to being tenants of the Commissioner, regardless of the circumstances of their tenancy.
Because of their inability to compete in the private rental market, the Commissioner’s tenants must work with the Commissioner to deal with issues pertaining to their tenancy, be it condition of the premises, difficulties with their housing manager, or issues of safety with the location of their property. In other words, they cannot move out into another property as the circumstances that qualify them for social housing often mean that they cannot rent privately.
Noting that the housing stock used for allocation of properties is the same as the stock that is used for transfer between properties, the respondent follows a similar process for transfer between properties as it does for allocation. That is, assessing the needs of applicants against the criteria for the high needs and priority lists, taking into consideration the same issues of complex disadvantage.[3] This means that to transfer from a property that does not meets a tenant’s needs, whether it is because of the condition, size, or location of the property, they must again meet the criteria for early allocation and be placed on the high needs or priority lists if they hope to move to a new property within a reasonable timeframe. Noting however that, due to the high demand on the Commissioner’s limited stock and the urgency and hardship faced by many applicants for housing or transfer, the waiting period for a transfer, even from the priority list or high needs list, can be several months.
[3] Transfer or Swap Your Public Housing Home - >
The current average waiting time for transfer (as published by the respondent online) from the priority list is 388 days, for the high needs list it is 1,019 days and 1,761 days from the standard list.[4] These wait times can be much longer for large families, such as the applicant’s, who require larger properties.
[4] Waiting Lists for Public Housing, ACT Government, >
This background is important to help understand the circumstances of the applicant and why she may have remained living at a property that she says has needed urgent repair for several years. The limitations of the applicant’s situation and inability to easily relocate make the condition of the property and the lessor’s obligations in maintaining the property particularly serious.

The application

Ms Frey filed an application for resolution of a dispute under the RT Act on 18 April 2024. In her application, Ms Frey made the following claims:
a. Pursuant to section 83(1)(b) of the Act, the Respondent perform its obligations under the RTA by carrying out the repairs to the premises in the Notice to Remedy on an urgent basis and provide the applicant and the Tribunal with a schedule for completion of those repair works, namely:
i. Replacement of fence,
ii. Rectification of water damage affecting the eaves and causing warping and mould,
iii. Replacement of the roof fascia,
iv. Trimming of tree,
v. rectification of water ingress to the property and associated damage,
vi. Rectification of mould.
b. pursuant to section 71(2)(a)(ii) of the Act, a reduction in the rent payable under the RTA:
i. as a result of failure by the respondent to maintain the premises in a reasonable state of repair,
ii. Applying retrospectively from 16 August 2019 until the date the respondent complies with an order under paragraph (13)(a) of this application.
iii. In an [sic] amount the Tribunal considers appropriate considering the duration of the respondent’s failure to repair the premises and the nature and extent of the respondent’s breach of the Act and the RTA, (and in this regard the Tribunal may be guided by the compensation awarded in Miskin v Munaj & Anor [2024] ACAT 1, Seears v Havelock Housing Association Inc (Residential Tenancies) [2018] ACAT 55 (16 May 2018); Arthur & Anor v Geromboux & Anor [2021] ACAT 20);
c.Pursuant to section 71(1)(c) of the Act, that the Respondent compensate the Applicant for interference with the Applicant’s quiet enjoyment and ability to use the premises in reasonable peace, comfort and privacy resulting from its failure to carry out repairs;
d.Pursuant to section 83(1)(c) of the Act, the Respondent compensate the Applicant for the cost of items destroyed as a result of the Respondent’s failure to maintain the premises in a reasonable state of repair in the amount of $520.00.
e.Pursuant to section 83(1)(d) of the Act, that the Respondent compensate the Applicant for non-economic loss resulting from distress and disappointment (see Young v Chief Executive Officer (Housing) [2023] HCA 31); and
f. Any further orders the Tribunal considers appropriate.
Ms Frey annexed the following documents to her application:
(a)Residential Tenancy Agreement commencing on 5 August 2009.
(b)Email chain with Programmed dated 21 May 2024.
(c)Notice to Remedy received 8 February 2024.
(d)Response to Notice to Remedy dated 26 February 2024.
(e)Letter to Housing ACT dated 2 April 2024.
(f)Email dated 16 August 2019,
(g)Letter dated 21 October 2021,
(h)Bottom part of the Rental Inspection Report dated 28 May 2019,
(i)Bottom part of the Rental Inspection Report dated 13 February 2020,
(j)Bottom part of the Rental Inspection Report dated 29 April 2021,
(k)Bottom part of the Rental Inspection Report dated 18 January 2023,
(l)Notice to Remedy dated 8 February 2024,
(m)Letter dated 26 February 2024,
(n)Letter dated 2 April 2024,
(o)Witness statement,
(p)Photographs.
Annexure A of Ms Frey’s application includes a summary and background to her application which sets out the history of contact between the applicant and the respondent relating to the applicant’s request for repairs.
The applicant’s notice to remedy dated February 2024 sets out the basis for the applicant’s claim plainly as follows:
NOTICE TO REMEDY – REPAIRS AND URGENT REPAIRS …
3.     The lessee notes that under the [Residential Tenancy] Agreement, the lessor must carry out the following repairs within 4 weeks of the lessee’s notice:
Fence: Timber decay and general wear and tear affecting the perimeter timber fence of the Premises to the extent that the fence is not fit to secure the Lessee’s pet dogs within the Premises.
Eaves: water damage affecting the eaves has caused timber warping and mould.
Fascia: water damage affecting the roof fascia has caused water ingress in the dwelling and has decayed to an extent that building materials comprising the fascia have dislodged and are falling on the ground surrounding the dwelling.
4.     The lessee notes that the lessor must carry out the following Urgent Repairs as soon as necessary having regard to the nature of the repairs:
Tree trimming: a large tree within the boundary of the premises has grown up to a power line and requires an arborist to attend the premises to trim the tree urgently. Failure by the lessor to attend to this repair is likely to cause:
a.the residential premises to be unsafe; and
b.injury to person or property.
Water Ingress: a bedroom, the dining room, the living room and front patio of dwelling (Affected Rooms) is affected by water ingress causing dampness damage to personal property throughout the dwelling.
…
6.      Mould: as a result of the water ingress mould is growing in the affected rooms, in particular window sills and hard timber surfaces. The lessee’s eldest daughter who resides in the premises is an asthma sufferer and has notices [sic] worsening symptoms from recent rain events promoting increased mould growth in the dwelling. By virtue of the extent of the mould and premises occupants asthma condition this repair should be considered as likely to cause:
a.the residential premises to be unsafe; and
b.Injury to person or property.
The respondent’s reply
Ms Frey filed a copy of the respondent’s reply to her Notice to Remedy. The response was dated 26 February 2024 and stated as follows:
Regarding the fence and eaves, Programmed have advised that a work order was last raised on 04 May 2021 to inspect the fence and eaves however noted that due to the Covid-19 lockdown there was a significant delay due to a backlog of works. Programmed further advised that due to an administrative error these works were cancelled on 27 June 2022. Programmed sincerely apologises for the substantive delay and has raised an urgent work order to inspect and repair the fence and eaves with a target rectification of early March 2024.
In relation to the fascia, Programmed have advised that a work order was raised on 30 June 2020 to inspect the rear fascia at your Housing ACT Property. Upon the contractors attempts to contact you, they reported that the number was disconnected and therefore the work order was cancelled. On 11 January 2023 a work order was raised to inspect the wiring on the facia, a contractor attended and repaired the wiring. Programmed have advised that work order has been raised to inspect the fascia with a target rectification of early March 2024.
Regarding the tree trimming concerns, Programmed have advised that a work order was raised on 22 September 2023. Contractor attended and scoped the works required, this was then reviewed by a programmed Project Supervisor who deemed these works not urgent. Should this change in the future please contact Programmed.
In relation to the water ingress, Programmed have advised that a work order was raised on 3 February 2023 to inspect roof and clear downpipes. Contractor attended pruning two (2) overhanging trees, cleared gutters and downpipes and repaired roof tiles. Programmed have advised that there have been no further reports or service requests regarding this concern. Should this still be of concerns please contact Programmed to raise a work order.
Regarding mould reported at your Housing ACT property, Programmed have advised that a work order was raised on 13 March 2020 reporting of mould within the bathroom. Contractor attended and treated the mould noting that the mould had stained the paint within the bathroom. On 04 June 2020 a contractor reattended and repainted the bathroom. Programmed have advised that there have been no further reports or service requests regarding mould at your housing ACT property. Should this still be of concern, please contact Programmed to raise a work order.
Ms Frey was assisted by Canberra Community Law to respond to the letter from Housing ACT as follows:
Fence- A contractor did attend the property and nailed some additional palings to the fence. However, this will only be a temporary fix as the fence is in decay and needs to be replaced. The fence has not been replaced for at least 14 years since Ms Fray started to reside at the property. We request that a work order is raised to replace the fence.
Eaves- A contractor did attend the property to do an inspection and advised that they would send a quote to Housing ACT. Can you please provide an update on the status of this work order?
Roof, Gutters. Tiles- A contractor also attended the property to inspect the roof. The contractor advised that work was required to the roof and that there were broken tiles which needed to be replaced. The contractor also advised that the gutters, eaves and fascia also needed to be replaced. The contractor advised that the fascia had deteriorated and it was dangerous because of the location of the powerline. Can you please provide an update on the status of this matter?
Tree Trimming – As per Ms Fray’s Notice to Remedy a large tree within the boundary of the premises has grown up to a powerline and requires an arborist to attend the premises to trim the tree urgently. Can you please raise this as a work order.
The water ingress and mould remain outstanding issues which Ms Fray has previously reported to Housing ACT/Programmed. Notwithstanding that she has previously reported these matters, she will contact Programmed again and ask that work orders are raised.
Ms Fray submitted several photographs with her application, including photographs of the fence accompanying an email dated 19 May 2021. These photographs show the fence in a dilapidated state with gaps and missing and broken palings. Also shown is a broken fence post with exposed nails. Her application is accompanied with new photographs of the fence dated 19 February 2024, these photographs show that some new palings affixed to the timber fence with metal tracks and gaps between some of the palings.
Photographs accompany the email of 19 May 2021 showing a large tree which overhangs Ms Frey’s clothesline and wires above the property. The application includes the bottom half of four inspection reports. The reports record a number of issues, the following are extracted as they relate to this application:
a.       Report dated 28 May 2019 – Rear fence needs repair, mould in shower room.
b.       Report dated 13 February 2020- ceiling dining possible leak paint peeling, fascia rotted on side of house.
c.       Report dated 29 April 2021 – Paint peeling dining ceiling related to water leaking- tenant has video of water leaking internally through window during rain, tenant transfer- HACT relocation in progress. HP to check status, tenant has requested 4 bedroom.
d.       Report dated 18 January 2023 – leaking water damage in dining room, roof facia        coming off roof, backyard tree touching powerlines, fence paling falling off back and side fence.

Ms Frey sent the respondent a number of repair notices in relation to the same issues raised herein including:
a. 16 August 2019 – repair notice informing the respondent that the fence needs repair.
b. 19 May 2021- repair notice again in relation to the fence.
Ms Frey attached correspondence from the Commissioner undertaking to address the issues she had raised.
Ms Frey has provided copies of correspondence dated 15 February 2023 regarding the tree growing around and above the telephone wire across the property.
The respondent was clearly on notice about the various maintenance issues raised by Ms Frey and has replied to the notices and through its contractor raised work orders, however the issues remained unresolved for some time following the correspondence between the parties.

ACAT Proceedings

A preliminary conference was scheduled on 3 June 2024, this conference and the one after on 1 July 2024 were adjourned. A third conference was scheduled for 20 August 2024. That conference did not result in the resolution of the dispute between the parties and the matter was listed for hearing on 27 August 2024. The applicant filed a new submission the day before the hearing which set out her claims along the same lines as her previous submissions. The respondent at hearing sought an adjournment to familiarise themselves with the new submissions and an adjournment was granted and the matter listed for hearing on 2 September 2024.
Hearing
At the hearing on 2 September 2024, the respondent was represented by ACT Government Solicitor. The respondent’s solicitor sought another adjournment as they had only recently received the brief and required time to familiarise themselves with the material. Given the adjournments on the previous occasions, the delays already associated with the issues raised by the applicant and the likely impact of further delays on the applicant, the Tribunal determined that it was not in line with the purpose of the Tribunal nor the objectives of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) to adjourn the matter again.[5] The applicant summarised her claims and provided the Tribunal with additional information including:
Facia and Tree
[5] ACAT Act ss 6 and 7
The facia to the premises was repaired at the end of July 2024.
The phone lines and internet were reconnected by the end of July 2024.
The tree that was close to the phone lines was pruned in July 2024.
Water ingress and Mould
The issue with the mould in the bedroom and dining room, along the walls and carpet persisted at the date of hearing.
The respondent’s material suggests that the entire ceiling in one bedroom as well as the kitchen ceiling still required replacement due to water damage and mould (respondent’s table filed in PC 3/6/2024) and the applicant submitted at hearing that this issue remained unresolved.
One side of one of the bedrooms cannot be used because of mould and water ingress. Ms Frey’s two sons share that bedroom, one of her sons has been sleeping in her bedroom since December 2023 because of the mould in that room, her other son continues to use the bedroom despite the mould due to lack alternatives.
When it rains water pours from the ceiling.
Ms Frey says that she has had to stay up during the nights to catch the leaks from the ceiling to ensure that furniture and flooring is not damaged by the water.
Ms Frey says that she is ashamed to have people over because of the condition of the property.
She has had to throw out one mattress because of the water damage.
Someone came out to clean the mould in the weeks prior to the hearing and asked her to empty out half the room. She did so but they came back in the last few days and said that the whole room needs to be emptied out.
As of the day of the hearing the mould had not been cleared by the lessor, the ceilings had not been replaced as noted in the respondent’s table and it was not clear whether the water ingress issue was finally resolved or just made safe.
Fence
Between 2010-2011 the palings started to come off.
Ms Frey tried to fix them herself but her fixes were only temporary.
Since issuing a Notice to Remedy contractors have come and nailed new palings to the fence using small metal strips.
The contractors nor the respondent have told her why the fence is only made safe rather than being replaced given its condition and considerable age (given it is at least 14 years old and was, according to the applicant, in poor state when she moved in in 2009).
The fence was made safe in February 2024.
The family have had to give their dogs away because the fence has been insecure, and the dogs were getting out – this was upsetting and distressing especially to Ms Frey’s children.
Transfer offer
Ms Frey has been on the transfer list for several years.
She received two offers for transfer to alternative properties, one on 5 March 2024 and another 18 March 2024. She declined both offers.
One of the properties she was offered was very run down but one was new.
She really wanted to move into the new property, but the rooms were too small, they contained no storage for clothes and were too small to install wardrobes. There was a small patch of grass which was not sufficient for the family dog, and there was very little space for the family cars. The family decided that the property did not meet their needs.
Respondent’s reply
The respondent, through its solicitor, submitted the following:
(a)That the new property that was offered to the applicant was larger per square meter, (but no evidence was submitted of the property nor plans to show bedroom sizes or otherwise).
(b)That the applicant had failed to provide adequate evidence to substantiate the quantum of her loss with respect to economic and non-economic loss.
(c)That there was relatively scant evidence, other than the applicant’s evidence at hearing, regarding her loss and that her witness statement was articulated in such generality to lack probative value. The solicitor said that the applicant had not submitted any medical evidence to substantiate her claim that she had suffered mentally because of the ongoing issues pertaining to the repairs to her property. It was submitted by the respondent that “the situation could not have been that bad” as the applicant chose not to move when offered an opportunity to transfer.
The respondent provided the following breakdown of the rent paid by the applicant throughout the course of her tenancy at this property:
1/01/2019-7/12/2019 - $67.45 per week,
8/12/2019-27/8/2022- $71.50 per week,
28/8/2022-24/10/2022- $254.40 per week,
25/10/2022-present day - $231.05 per week.
The difference in the rent here can be attributed to the respondent’s formula for rebating rent based upon the household income.
The respondent filed a table as part of their response which sets out the various maintenance issues that have been raised by the applicant and carried out by the respondent from 8 June 2019 to 24 April 2024. The respondent filed this material at the preliminary conference and again at hearing. The table provides the following information set out chronologically from the earliest to the latest: Reported date, target start date, target completion date, actual completion date, description, priority, completion note, work logs.

The Respondent’s Table of Maintenance Issues

I have extracted the entries on the first two pages of the table to provide a snapshot of the issues raised and the way they have been dealt with. I will not extract the entire table as it is extensive.
On 3 June 2019, Ms Frey reported that the kitchen tap plumbing was having issues. The target start date for the work was 8 June 2019, the actual completion date/cancellation date was 4 July 2019 for that job. The issue was classed as priority level 3 and the completion note was, “rang several times, no answer, carded twice – 13/6/19 and 24/6/19 no response.”
On 3 June 2019, a job is raised with note:
‘housing request- louvre pane in bath and privacy glass on bath door have been damaged’ this job was completed on 17 June 2019 and it was classed as a priority 1 job.
This job was completed in two weeks.
On 14 August 2019, it was reported that the “rear fascia deteriorating”. It is noted that this job was completed on 25 May 2020. The work note says:
‘ after review this workorder has been raised as a duplicate’- in work logs it says – 7/11/19 Facia rotted, the fascia on the right hand side of the house is rotted and exposed to rain I think it’s from water damage due to rain. 7/11/2019 will need electrician. Will need electrician to come and inspect and remove so that the fascia can be replaced. 30/3/20 EOT for 30/4 - quote to be submitted for replacement. 30/3/20 emailed tech to submit quote asap.
This job was classed as a priority 5 and completed 9 months after it was reported. Noting that completion appears to mean obtaining a quote and not actioning the requisite repairs.
On 16 August 2019, Housing ACT raised a request – “KIT taps leaking, low water pressure”. The work log provides –
16/8/2019 Housing request email- can I have the below work orders re-raised? Both work orders have been cancelled for kitchen taps info from work order- leaking tap minimal water pressure. Sometimes water hammer says issue has been happening for about 6 months. WA1923675 for roof leak info from work order – leak in the roof very strong during heavy rain spot in the dining room where the paint has come off gyprock has deteriorated- tnts son Jake- Steve- housing. Black mould also reportedly in shower cell. Can we have someone have a look at this? Might be worth doing a PCA? Please contact the tenant on - , 21/8/19 appointment broken. Appointment made for 9-10am on 21/8/19. Tenant not home, calling card left.
On 26 August 2019, it was reported that:
there were blocked drains and toilet not flushing properly at the property. The completion note states that ‘cleared blocked drain down the kitchen org, unknown blockage.’
This job was completed on the same day.
On 10 September 2019, it was reported that:
‘toilet blocked and drain overflowing with sewage’ . In completion notes states – Eeled 4 cables down kitchen dt and cleared unknown blockage. Not a recall. Cancelling and re-raising.
This issue was classed at priority 1 and completed on 17 September 2019.
On 20 December 2019, it was reported that:
‘water main out the front is full and overflowing’ it was classed as priority 1. the completion note provides that ‘Icon refs --- attend site found union just before meter to be leaking, try to tighten union but found issue to continue, seems washer has split, notified icon attend urgently and repair.’
The completion date for this job is 20 December 2019.
On 30 January 2020 it was reported that, “Switchboard upgrade – requested by Ian Vesperman. The completion note provides:
Upgrade switchboard added new circuit for kitchen and laundry due to blown in insulation added earth stake.
Work logs states, “4/2/20 appointment booked with the tenant for Thursday 6^th Feb between 9-10am.” The job was completed on 6 February 2020.
On 16 March 2020, it was reported that:
Tenant has stated that she is unable to remove the mould and that there appears to be an issue with....
The completion notes states:
Mould growth was present in one of the two showers in the bathroom. The shower is in a dark spot with no window therefore making ventilation very minimal. Tenant has kept on top of cleaning however had stained the paint and the silicon in the shower will need to be removed as it did not clean up. All walls and ceiling were cleaned with an antimicrobial as well as all shower tiles and ventilation fan.
This job was completed on 21 April 2020.
On 23 March 2020, it is reported that:
The tenant has reported blocked drain in the outside after every use of the internal taps when...
The completion note says, “Jet blast sewer line.” This job was completed on 24 March 2020.
On 23 April 2020, it is noted that, “Water tank explode and water pouring everywhere.” This issue is classed as a Priority 1 issue. The work logs provide the following:
24/4/20 please raise for NFY to replace HWS. 1/6/20 extension of time required. Attending in the next few weeks please EOT until 28/6. 2/6/20 extension of time required. Attending in the next week please eot until 16/6. 11/6/20 sam from housing called to follow up on the replacement HWS- she said the tenant has received a temp hot water service and would like an update on the replacement I have contacted water brothers i spoke with Lachlan advised next week is the ETA- needs to be approved and arranged with the tenant for an appointment estimate would Wednesday 17/6. 12/6/20 please re-raise to replace HWS.
This issue is logged at having been completed on 24 April 2020, but the notes indicate that the issue remained unresolved until at least July 2020. The work log on 19 June 2020 in relation to this issue reads:
22/6/20 extension of time required. Please extend this job to the 10/7/2020. 9/7/20 Sam HM called and action was called Patrick Lawler they advised will investigate it tomorrow. Awaiting for approval on the quote and will talk to Tanya from the office as she gone for the afternoon. 9/7/2020 emailed Patrick Lawler for a reminder for tomorrow. Hello Patrick Lawler plumbing. Please contact tenant from (address). JM called and action was called Patrick Lawler they advise will investigate it tomorrow. Awaiting for approval on the quote and will talk to Tanya from the office as she has gone for the afternoon to arrange appointment time to carry out works/inspection. 10/7/20 extension of time required. Job booked for 13/7/20. Please extend to 14/7/10 [sic].
On 13 July 2020, it is reported that, “First point to run a new circuit. Installed wiring to heat pump including isolation switch.” This may have been the point at which the hot water system which was raised on 23 April 2020 was finally replaced. This issue took almost 3 months to repair. Though it appears from the notes that a temporary system was in place.
This snapshot of issues at the property suggests that the property has had ongoing maintenance problems over several years. It shows that Housing ACT’s contractor Programmed sometimes resolves the issue within the legislative timeframe but sometimes it is months later that the issue is finally resolved, some issues do not appear (from the log) to have been resolved at all. Often an extension of time is requested and granted for conducting of the work, from this table it is not clear on what basis the extensions are sought or granted.
No evidence was submitted in relation to the age of the property, but the maintenance logs suggests that it is an older property which has required extensive maintenance. The issues are often serious, such as blocked toilet, burst hot water system, dangerous tree, mould and water leaks.
The issues that have given rise to these proceedings which are included in this table, are noted above and as follows:
On 15 April 2021, it is noted, “Related to first level complaint WA4687658 – eaves/roof and fence repair.” The work log states:
12/10/21 - Case manager contact details.
2/2/22 sent email to vendor to inquire about any update
3/2/22 Housing advising works still needing to be scoped. Tenant now has child protection services involved and now escalating further. Can this please be scoped today or tomorrow (24hrs) and feedback of works required? Fending on both sides of the property are PVT’s
3/3/22 appointment 3/2
23/5/22 email from contractor for extension of work order: could this work order please be extended to 17/06
23/5/22 extension granted.
On 12 October 2021, it is noted, “Fence palings falling off.”
On 3 February 2022, it is noted, “Roof repair.” The completion notes states:
Cleared gutters. Pruned 2 trees overhanging room. Made safe broken/missing roof tiles. (emphasis added)
On 13 February 2024, it is noted, “Notice to remedy – inspect and repair fence.” The work log states:
16/2/24 - confirmed appointment 19/2/24
21/2/24 please note over $700 cap 4 fences repaired.
On 13 February, it is also noted, “Notice to remedy – inspect the eaves and fascia.” In work logs, it states:
13/2/24 unable to contact. Tenant didn’t pick up the call but have left a voicemail.
1/3/24 additional work to be raised to remove all eaves due to black mould and replace and paint all eaves to dwelling including timber quad cornice.
20/3/24 as discussed with Nicole, we have excluded relocation of NBN line. Tenant will have to organise it is the work order gets approved.
On 22 February 2024, it is noted, “Roof leaks heavily during the heavy rain which has caused ceiling damage.” The completion notes states:
This is a make safe only, repaired leaking flashings and flues x4, replaced dislodged tiles x1.
Additional works required info in work logs send to above all roof maintenance gutters need to be replaced and ridge capping needs to be done. (emphasis added)
The work logs provide:
6/3/24 Roofing : send to above all roof maintenance rebed and point ridge capping replace damaged caps x8 replace damaged tiles x20 elabana this is a make safe only.
6/3/24 Gutters: send to above all roof maintenance gutters need to be replaced gutters a falling off facia board replace leaking downpipes x3 100 x 75 x 1 100 x 50 colour mist green needs fascia cover and barge roll this is a make safe only.
6/3/24 Carpenter: Carpenter needs to replace damaged rotting fascia boards very damaged needs to be replaced asap this is a make safe only needs to be done first before other jobs.
26/3/24 all 3 additional works went to planned for review and assessment. (emphasis added)
On 6 March 2024 it is reported that “piece of ceilings have fallen off in a child’s bedroom (bedroom 2) and the dining room.” The completion note states:
Need 4sqm ceiling in bedroom 1 replaced and painted. Need to advise tenant when we start so bedroom can be cleared while work is being undertaken. Replace and paint 2sqm ceiling sheets in kitchen. Need computers and desk moved while doing works.
The work log provides:
6/3/24 appointment is booked in with the tenant for 9am at 7/4/24.
21/3/24 Need to raise an extra work order for ceiling replaced. Need to raise a separate workorder to rectify as per completion notes.
26/3/24 New work order required. Need 4sqm ceiling in bedroom 1 replaced and painted. Need to advise tenant when we can start so bedroom can be cleared while work is being undertaken. Replace and paint 2sqm ceiling sheets in kitchen. Need computers and desk moved while doing works.
2/4/24 sent to planned for review and assessment.
18/4/24 thank you for passing this on. I have added it to our P2 list.
14/5/24 provided following info to tenant as requested by colleague upon my investigation the mentioned completed work (SR1861848 in the screenshot provided by tenant below) was WA8496832 and was just a scope for work. Please inform the tenant that the scope has been sent to planned team and its under the p2 list.
On 6 March 2024, the work log reads:
6/3/24 Email correspondence from HACT: Good afternoon team. I've been reviewing our higher level commitments register and have seen MCM have attended for WA8401719 at (address) in relation to a notice to remedy we received. They have recommended the following “Additional work to be raised to remove all eaves due to black mold and replace and paint all eaves to dwelling including timber quad cornice” I’ve attached the photos they have taken. Could these recommendations please be reviewed when you get a chance.- Bradley Gale.
7/3/24 Related to notice to remedy.
6/5/24 email to vendor: Hi team, just following up on WA8500334 as it is now overdue y a month, could you please provide an update?
31/5/24 awaiting response from NBN.
The completion notes and work logs provide insight into how maintenance issues are logged and processed by the contractor. There are considerable delays in the finalisation of maintenance issues. These delays appear to be partly because of the nature and complexity of the issues and partly because of the bureaucratic system that surrounds the maintenance of a Housing ACT property. The scoping of work, price caps, the extensions of time sought and granted in relation to repairs, and undertaking of the work by the contractors all add a level of complexity to the maintenance that appear to cause delays in completion of the work. It is not clear from the log how much oversight the respondent has into the maintenance process administered by its contractor. Many of the issues pertaining to the water leak are only made safe and ongoing work is required to finally address the issue.

Legislative framework

The RT Act sets out the legislative framework for all residential tenancies in the ACT. The RT Act gives the Tribunal power to resolve residential tenancy and occupancy disputes. Schedule 1 of the RT Act provides standard terms that are included, or should be included, in all residential tenancy agreements. Schedule 1 of the RT Act stipulates at standard term 2:
By signing this tenancy agreement, the lessor and the tenant agree to be bound by its terms during the period of the tenancy it creates.
Thereby, parties to a residential tenancy agreement enter into a contract and a breach of the standard terms is treated as a breach of that contract. This interpretation is supported by the unanimous decision of the High Court of Australia in Young v Chief Executive Officer (Housing):
21. The reasoning of the Court of Appeal and the argument of the CEO were also correct to the extent that they identified the design of the Act as being to provide for the application of the general law of contract, by making certain obligations terms of a tenancy agreement so as thereby to become enforceable contractual obligations carrying "full contractual liability for breach"18. Whether the main purpose of that element of the legislative design was to improve the understanding of landlords and tenants of their rights and obligations in relation to residential tenancies by requiring those obligations to be recorded in the terms of tenancy agreements or to ensure that landlords and tenants are provided with contractual mechanisms for enforcing their rights under tenancy agreements need not be explored.[6]
[6] Young v Chief Executive Officer (Housing) [2023] HCA 31
Moreover, parties cannot contract out of their obligations under the contract, as asserted by standard term 3:
A party to this tenancy agreement cannot contract out of it or out of the provisions of the Residential Tenancies Act, except as provided in that Act.
The standard terms relevant to this application are 52, 55, 57,59 and 60. These are set out below:
52 The lessor must not cause or permit any interference with the reasonable peace, comfort or privacy of the tenant in the use by the tenant of the premises.
55 (1) The lessor must maintain the premises in a reasonable state of repair having regard to their condition at the commencement of the tenancy agreement.
(2) The tenant must notify the lessor of any need for repairs.
(3) This section does not require the tenant to notify the lessor about anything that an ordinary tenant would reasonably be expected to do, for example, changing a light globe or a fuse.
57 Subject to clause 55, the lessor must make repairs, other than urgent repairs,      within 4 weeks of being notified of the need for the repairs (unless otherwise     agreed).
59 The tenant must notify the lessor (or the lessor’s nominee) of          the need for     urgent repairs as soon as practicable, and the lessor must, subject to clause 82, carry out those repairs as soon as necessary, having regard to the nature of the problem.
60 The following are urgent repairs in relation to the premises, or services or            fixtures supplied by the lessor:
(a) a burst water service;
(b) a blocked or broken lavatory system;
(c) a serious roof leak;
(d) a gas leak;
(e) a dangerous electrical fault;
(f) flooding or serious flood damage;
(g) serious storm or fire damage;
(h) a failure of gas, electricity or water supply to the premises;
(i) the failure of a refrigerator supplied with the premises;
(j) a failure or breakdown of any service on the premises essential for hot water,       cooking, heating, cooling or laundering;
(k) a fault or damage that causes the residential premises to be unsafe or insecure;
(l) a fault or damage likely to cause injury to person or property;
(m) a serious fault in any door, staircase, lift or other common area that inhibits or unduly inconveniences the tenant in gaining access to and use of the premises.
Section 83 of the RT Act gives the Tribunal the power to order compensation for a breach of a residential tenancy agreement if a party can show that they have suffered a loss because of the breach. The Tribunal can order compensation for each breach of the agreement where it determines that the breach has resulted in loss.[7]
[7] Young v Chief Executive Officer (Housing) [2023] HCA 31
Section 71 of the RT Act enables the Tribunal to order a reduction in rent if it considers that the tenant’s enjoyment of the property has been diminished as a result of the lessor’s failure to maintain the property, having regard to the condition of the property at the commencement of the tenancy. A rent reduction takes effect from the day that the tenant’s enjoyment of the property diminished (or a later date specified by the Tribunal) and can remain in force for up to 12 months.
Sections 83 and 71 of the RT Act are set out below.
83 Orders by ACAT
Without limiting the orders the ACAT may make, the ACAT may make the following orders in relation to an application about a tenancy dispute or occupancy dispute:
… (b) an order requiring performance of a residential tenancy agreement or occupancy agreement.
(d) an order requiring the payment of compensation for loss of rent, occupancy fees or any other loss caused by the breach of a residential tenancy agreement or occupancy agreement.
71 Reduction of existing rent
(1) On application by a tenant, the ACAT must order a reduction in the rental rate payable under a residential tenancy agreement if it considers that the tenant’s use or enjoyment of the premises has diminished significantly as a result of any of the following:
(a) the loss or diminished utility of an appliance, furniture, a facility or a service supplied by the lessor with the premises as a result of—
(i) the withdrawal of the appliance, furniture, facility or service by the lessor; or
(ii) the failure by the lessor to maintain the premises and any appliance, furniture or facility supplied with the premises in a reasonable state of repair, having regard to their condition at the commencement of the residential tenancy agreement; or
(iii) the failure by the lessor to provide and maintain the locks or other security devices necessary to ensure that the premises are reasonably secure;
(b) the loss of the use of all or part of the premises;
(c) interference with the tenant’s quiet enjoyment of the premises or the tenant’s ability to use the premises in reasonable peace, comfort and privacy by the lessor or anyone claiming through the lessor or having an interest in, or title to, the premises.
(2) To remove any doubt and for subsection (1), a tenant’s quiet enjoyment of premises is interfered with if there is substantial interference with, or a significant lessening of freedom in exercising, the tenant’s rights.
(3) A reduction in the rental rate ordered under subsection (1)—
(a) takes effect from the day the tenant’s use or enjoyment of the premises diminished, or the later date that the ACAT specifies; and
(b) remains in force for the period, not longer than 12 months, specified by the ACAT.
(4) The ACAT may order a lessor to pay to the tenant the difference between the rent paid and the rent payable as a result of an order for a rental rate reduction.
(5) Any purported increase in the rental rate in relation to premises for which a reduction order is in force is void and any amount paid above and beyond the reduced rental rate in accordance with a purported increase is a debt owing by the lessor to the tenant.

The issues to be determined

The issues to be determined are:
(a)Whether the repairs were urgent, as set out in standard term 60, or non‑urgent.
(b)Whether the lessor failed to maintain the premises in a reasonable state of repair and carry out repairs within the legislative timeframes, breaching standard terms 55 and 57.
(c)Whether the lessor failed to carry out urgent repairs as needed, breaching standard term 59.
(d)Whether failure to carry out the repairs, and the ongoing impact of the outstanding repairs resulted in a breach of clause 52 i.e. whether lessor caused or permitted “interference with the reasonable peace, comfort or privacy of the tenant in the use by the tenant of the premises”.
(e)Whether any of the breaches caused the tenants to experience a loss and would thereby require the Tribunal to order the payment of compensation to the tenants under section 83(d) of the RT Act.
(f)Whether any of the breaches diminished the tenants use and enjoyment of the property or resulted in the loss of use of all or part of the property and thereby require the Tribunal to order a rent reduction under section 71 of the RT Act for up to 12 months.
The language of the standard terms is unambiguous in so far as it states in mandatory terms that the landlord “must” maintain the premises in a reasonable state of repair. Standard terms 55 and 57 articulate these obligations.
In Withers-Norris v Pastrello [2016] ACAT 95, the Tribunal considered decisions of earlier tribunals in relation to standard term 55:
90. … In Brogan at [68], the tribunal said:
In Irena Peters v Commissioner for Housing for the ACT [2006] the then Residential Tenancies Tribunal decided that a lessor's obligation to repair under standard residential tenancy terms 54 and 55 is framed in mandatory terms, i.e. the lessor “shall” maintain the premises in a reasonable state of repair. It is therefore not a defence to any landlord to plead that reasonable steps were taken to rectify either patent or latent defects. The test is whether these defects were in fact remedied such as to maintain the premises in a reasonable state of repair.
91 In Salem and Gizgeez at [44] the tribunal said:
The obligation to maintain premises in a reasonable state of repair, imposed by clause 55 of the standard terms on the lessor, is a mandatory obligation that is not diminished by the fact that the need for repairs is due to fault on the part of a third party, or by reliance on a third party to undertake repairs.
In Halcombe v Hitchman [2018] ACAT 5, Presidential Member Symons stated that the landlord’s obligations to maintain the premises in a reasonable state of repair is mandatory – the test being whether the defects were actually remedied rather than attempts made to remedy the issues.
The lessors have a legal obligation to maintain the premises in a reasonable state of repair. Attempts to make the repairs are not sufficient. This duty is particularly important in relation to social housing, where, as said before, the tenants often cannot, by virtue of the circumstances that qualify them for social housing, relocate to alternative accommodation.

Findings

Standard term 60 provides a list of items which are urgent repairs requiring the lessor to carry out the repairs as soon as necessary given the nature of the issue, as required by clause 59.
Fence
I find that the fence required an urgent repair, as provided by standard clause 60, subclauses (k) and (l):
(k) a fault or damage that causes the residential premises to be unsafe or insecure;
(l) a fault or damage likely to cause injury to person or property.
The timber fence was in poor condition as described by Ms Frey and evidenced through her photographs. The fence was missing several planks and at least one post had come apart revealing rusty nails. The fence caused the premises to be unsafe and insecure as well as posed a safety hazard for Ms Frey’s children and dogs. The family had to give away two dogs because they could not be secured in the property. Though Ms Frey says that the fence was a problem shortly after she moved into the property in 2009, she has limited her claim in relation to the fence starting on 28 May 2019 when it is noted in a routine inspection which she has submitted. The fence was made safe in February 2024, though not replaced despite its age and condition. The photographs of the fence after it was made safe, show that it is still in poor condition.
The failure of the fence has rendered the premises insecure and resulted in the family having to surrender their pets. Moreover, the photographs of the fence prior to the recent repairs show exposed nails that were likely to cause injury.
The respondent has failed in its obligations under standard terms 55 and 59 in failing to repair or replace the fence. The applicant is entitled to compensation in relation to this breach.
The applicant has suffered loss of use and enjoyment of the property while the fence has rendered the backyard to the premises insecure, thereby the applicant is entitled to rent reduction until the fence has been replaced.
Eaves and Facia, roof leak and mould
I find that the damaged eaves, facia and serious roof leak are urgent repairs as defined by Standard Clause 60(c).
The damaged eaves and facia contributed to significant water ingress causing half of one bedroom to become unusable, causing mould in the bedroom and kitchen/dining room. Ms Frey was distressed by this issue having to stay up overnight to catch the water during storms and could not leave the house during heavy storms because she had to stay to ensure that her property was not damaged. She lived in a constant state of worry about water ingress during storms and had to keep moving her furniture to avoid water damage. She has also been sharing a room with one of her children who can no longer sleep in the bedroom affected by the water and mould. Ms Frey submitted at hearing that her other son is still sleeping in the room with the mould as the family have no other options.
She said that the state of the property resulting from the mould and water damage caused her to feel ashamed of having friends over and interfered with her enjoyment of the property. The water damaged a mattress for which Ms Frey seeks compensation.
It was submitted that Ms Frey’s children suffer from asthma which has been exacerbated by the mould. No medical evidence was submitted to support this claim.
The roof leak was first reported on 13 February 2020, Ms Frey followed up this issue on several occasions and according to the respondent’s table, it was made safe in March 2024.
In her Notice to Remedy dated February 2024, Ms Frey reports mould growing in the “affected rooms” – the Notice to Remedy provides that:
As a result of water ingress mould is growing in the Affected Rooms, in particular window sills and hard timber surfaces. The Lessee’s eldest daughter who resides in the premises is an asthma sufferer and has noticed worsening symptoms from recent rai events promoting increased mould growth in the dwelling.
On 2 April 2024, Ms Frey submitted photographs of the areas affected by mould with a communication sent to Housing ACT on her behalf by Canberra Community Law, indicating that the mould in the bedroom and kitchen had not been remedied, indeed this was confirmed by the respondent’s table.
I accept that the circumstances created by the water ingress are as described by Ms Frey. The respondent has failed in its obligations under standard terms 55 and 59 in failing to make all necessary repairs to deal with the water ingress and mould. The applicant is entitled to compensation in relation to this breach under s 83 of the RT Act.
The applicant has suffered loss of use and enjoyment of the property while the repairs required to remedy the water ingress have remained outstanding and is thereby entitled to rent reduction under s 71 of the RT Act until the repairs required to remedy the water ingress have been properly addressed, the ceilings replaced and the mould fully remediated.
The tree
A large tree at the property had grown to up to and around phone lines requiring pruning. The situation caused significant stress for Ms Frey who believed that the tree was interfering with power lines and likely to result in a fire. Ms Frey has submitted a copy of email communication between herself and Programmed the Housing ACT contractor where she reports her concerns with the tree. This email is dated 15 February 2023 and states as follows:
We spoke on the phone over a month ago in regards to getting this tree trimmed.
- I sent photos as you told.
- I then reached out to you again.
- I still have not heard or had an response about this maintenance issue being rectified.
- I would very much appreciate it if someone can please get someone out to trim this tree.
- It’s so big.
- Hangs over my clean washed clothes and birds poop on them.
- It’s close to an electric wire…
This email is evidence that that the issue was reported as required by Housing ACT, directly to their contractor. At hearing, Ms Frey says that the tree has now been pruned. The pruning occurred in June 2024. Some 18 months after it was reported in writing. I find that the pruning of the tree was a non-urgent repair which was not carried out within the legislative timeframe.
Failure to action this repair within the legislative timeframe resulted in a breach by the respondent in clause 55 and 57 of the RT Act. This failure caused Frey to suffer injury by diminishing her use and enjoyment of the property and causing her to worry about the safety of her home and children. The Ms Frey is entitled to compensation under s 83 of the RT Act.

Compensation and rent reduction

An award of compensation seeks to put a party in the position they would have been but for the breach. The RT Act empowers the Tribunal to award compensation where there has been such a breach, and a loss has been suffered.
In the submissions accompanying her application Ms Frey has sought a 40% rent reduction for all of the issues raised starting from 13 February 2020 until the issues are resolved. In a later submission made on 26 August 2024, she seeks 50% rent reduction from 13 February 2020 for the water leak, 5% from 28 May 2019 for the fence and 5% from 18 January 2023 for the tree.
Both submissions also seek $4,000 compensation for the respondent’s breach of clause 52.
The Tribunal may order a rent reduction where the tenant has suffered:
71 (1)
…
(b) the loss of the use of all or part of the premises;
(c) interference with the tenant’s quiet enjoyment of the premises or the tenant’s ability to use the premises in reasonable peace, comfort and privacy by the lessor or anyone claiming through the lessor or having an interest in, or title to, the premises. (2) To remove any doubt and for subsection (1), a tenant’s quiet enjoyment of premises is interfered with if there is substantial interference with, or a significant lessening of freedom in exercising, the tenant’s rights.
…
(3) A reduction in the rental rate ordered under subsection (1)—
(a) takes effect from the day the tenant’s use or enjoyment of the premises diminished, or the later date that the ACAT specifies; and
(b) remains in force for the period, not longer than 12 months, specified by the ACAT.
A rent reduction can only be ordered for 12 months, Ms Frey has sought rent reduction for some four to five years. It would be more appropriate in the circumstances to consider Ms Frey’s claim for rent reduction as:
(a)A claim for compensation for breach of the standard terms under s 83.
(b)That each breach has caused Ms Frey to suffer loss.
(c)That compensation to be awarded for each of the breaches in relation to maintenance be calculated as a percentage of rent paid by Ms Frey to the respondent, thereby reflecting the loss of utility in the premises caused by the outstanding maintenance issues.
(d)That in addition to compensation rent reduction be ordered for up to 12 months, where the issues remain outstanding and until such time as they are remedied, reflecting the loss of utility in the premises because of outstanding maintenance issues.
I accept Ms Frey’s submissions that a breach of clause 52 also gives rise to compensation where a loss has been suffered by the respondent’s failure not to cause interference with the reasonable peace, comfort or privacy of the tenant in the use by the tenant of the premises.

Duty to mitigate

Section 38 of the RT Act provides that:
A person who, apart from this section, would be entitled to compensation under this Act is not entitled to the compensation, or part of it, if the loss, or part of the loss, to be compensated could have been reasonably avoided.
The right to recover damages is always subject to the requirement that the party claiming damages (the innocent party) take reasonable steps to mitigate their loss, but the onus is on the other party to show the innocent party acted unreasonably.[8] When an innocent party is required to take steps to mitigate, the steps required will not be set too high.[9] Where there has been a failure to mitigate loss, the damages are reduced to what they would have been had the innocent party acted reasonably.[10]
[8] 10 TC Industrial Plant Pty Ltd v Robert’s Queensland Pty Ltd [1963] HCA 57
[9] Banco de Portugal v Waterlow and Sons [1932] AC 452 at [506]
[10] Hasell v Bagot, Shakes & Lewis Ltd [1911] HCA 62, Karacominakis v Big Country Developments Pty Ltd [2000] NSWCA 313 (Karacominakis) at [187]
The respondent’s solicitor submitted that the applicant had failed to mitigate her loss in not accepting the offer to transfer to other accommodation in March 2024. The Tribunal must thereby determine whether the transfer offers provided the applicant with a reasonable means of mitigating her loss and whether failure to accept the transfer offers was unreasonable.[11]
[11] Getting an offer for public housing – >
The applicant applied for a transfer from her current property to a different property prior to 21 April 2021 (as noted in the inspection report of that date). Applicants for social housing and applicants for transfer between social housing properties are offered up to two properties, if both offers are rejected the applicant can lose their place on the waiting list, unless the Commissioner agrees to keep the applicant on the list.[12]
[12] Getting an offer for public housing – >
Ms Frey was offered two properties. She refused both though she submitted at hearing that the Commissioner had agreed to keep her on the transfer list and consider her for a further appropriate property.
She says that the first property that she was offered was run down and in poor condition. She was concerned that she would find herself in the same situation as she finds herself now living in a property in ongoing need of repair. The second property that she was offered to transfer to, was a newer property. This property did not appear to have the same issues regarding maintenance.
Ms Frey said that she really wanted to accept the property, but it was too small. The main issue with this property was that the bedrooms were very small. She says that there was no storage for clothes and the rooms were too small to put wardrobes into. She says the backyard was very small and not sufficient to keep the family dog and the driveway was not big enough for the family cars. A decision was taken by the family to refuse this offer. There was no evidence offered by the respondent to contradict Ms Frey and her family’s deliberations on this issue, other than a submission from the bar table that the square meterage of the new property was more than Ms Frey’s current home.
It is important to understand this decision in the context of the allocation process, that is that once Ms Frey accepts an offer she can expect to be living in that property for some time and her ability to move to another property if this one proves to be inadequate is limited as her circumstances may limit her capacity to rent privately and she will again have to apply for a transfer through the Commissioner’s application framework.
Though the facts suggest that the newer property did not have the same maintenance issues, Ms Frey’s decision not to accept the property was reasonable given the unsuitability of the property to her family’s needs and the circumstances surrounding any subsequent move from that property. An application for a transfer is not just taxing on an applicant but the processing of such an application and the allocation process engages considerable public resources. It seems reasonable not to accept an offer if as a family, the applicant and her children have deemed the size and layout of the property to be inadequate to their needs.
The respondent’s solicitor submitted from the bar table, rather she put to the applicant under cross examination, that the second property that had been offered was larger per square meter than the property she was currently living in. The Tribunal did not receive any other evidence of this assertion. Moreover, the submission relies on the premise that the current size of Ms Frey’s property is adequate to her needs thereby any property with a larger square meterage would more than adequately meet her and her family’s needs. This is an assumption that the Tribunal has been asked to make without any evidence. Ms Frey has at no point in her application nor under cross examination asserted that the current property is large enough for her family of five. Be that as it may, the respondent has not provided evidence of their assertion in relation to the size or layout of the newer property.
It would be setting the requirement to mitigate loss very high if the Tribunal were to find that Ms Frey’s decision not to accept a property transfer was unreasonable. It was obvious to the Tribunal that Ms Frey is anxious to move out of this property and has been waiting for a suitable offer for several years. I do not find that the transfer offers were a reasonable means for Ms Frey to mitigate her loss nor that Ms Frey has acted unreasonably in refusing the offers to transfer.

Quantum of compensation

“A measure of a society is how it treats its weakest members.” This quote has been attributed to many people and is an important sentiment in this case. It reflects the measure of our community when a government agency, entrusted with the management of public housing for individuals facing financial and social disadvantages, fails consistently in its obligations to adhere to the law (that is enacted by the same government) and allows a family to reside in conditions that most people would find abhorrent.
The respondent’s log of maintenance issues at the applicant’s premises indicate that the property is in a poor state of repair and requires significant maintenance. Moreover, the table illustrates a process for identifying and attending to maintenance issues which appears multilayered and, as a result, cumbersome with no indication of oversight by the respondent.
The outcome of such a process is – as has been demonstrated in this case – significant delay in addressing serious maintenance issues which impact not only on the use and enjoyment of a property but may render the property uninhabitable until these issues are resolved.
Uninhabitability has not been put to this Tribunal to determine, however, the leak described in the material, pieces of ceiling falling in children’s bedrooms, black mould, and a dilapidated fence, all suggest that as long as these issues remain unresolved the property may not be habitable.
The respondent’s capacity to carry out the repairs is dependent to a significant extent on their contractors. Indeed, tenants are required to lodge the request for repairs directly with the contractor. However, the RT Act does not allow a party to a residential tenancy agreement to contract out of their obligations.[13] The lessor remains liable under the agreement despite the failures of their agents.
[13] RT Act s 3
The respondent’s solicitor submitted that there was no evidence of Ms Frey’s non-economic loss resulting from her loss of use and enjoyment of her property because of the ongoing issues relating to maintenance.
Though no medical evidence was submitted, it is reasonable to conclude that on the balance of probabilities, the issues here have had a significant impact on the use and utility of the premises and on the wellbeing of Ms Frey and her children. Such loss would in my opinion be suffered by anyone who was faced with the serious issues that Ms Frey has been navigating for several years, particularly where there is limited capacity to alleviate the issue by moving.
The loss has included the loss of family pets because of the insecure fence, the inconvenience of sharing a bedroom with a child, the stress of staying up overnight to catch water and moving furniture to avoid damage, the concerns around the health and welfare of her children, the shame to invite friends over and the stress of following up the repairs with the respondent, seeking legal assistance to address the issue and finally commencing legal proceedings at ACAT.
It was not submitted, but one can only imagine the impact that the condition of this property has had on Ms Frey’s children. Children should never have to sleep in a bedroom that has water pouring through the ceiling, black mould, or where parts of the ceiling are falling. One wonders how Ms Frey’s children can pay attention at school after a sleepless night following water ingress into their bedroom. A situation which apparently persisted for four years.
I find the respondent’s submissions in this regard unhelpful and lacking in insight.
The water leak resulting from damaged fascia, roof tiles and eaves was first reported on 13 February 2020 and remained an issue until July 2024 when according to Ms Frey, the leak apparently stopped. The respondent did not submit any evidence to confirm this and the only note in relation to this issue is from the table submitted by the respondent which states that the issue was only made safe. I find that the respondent failed in its obligations under 55 and 57 of the standard terms and Ms Frey is entitled to $12,000 compensation for the respondent’s breach. I have calculated this amount using a rent reduction formula of 35% of rent noting that the use of one bedroom and the kitchen dining area has been affected by the issue, paid from 20 February 2020 – July 2024, allowing 7 days to carry out the repair. Noting that there is currently no evidence before the Tribunal that the repair has been finalised.
The fence was first reported on 28 May 2019 repairs were carried out to the fence, and it was declared that the fence was made safe in February 2024. However, the photographs of the mended fence show that missing palings have been replaced but that gaps remain between several palings and the delipidated state of the fence generally has not been dealt with. I find Ms Frey is entitled to $5,000 compensation for the period that the fence had missing and broken fence palings. I have calculated this amount based upon a rent reduction formula of 15% of rent noting that the backyard was unsafe and could not be used to house the family dogs (which were subsequently surrendered) paid from 5 June 2019 until February 2024 allowing 7 days to carry out the repair. Noting however, that the fence requires replacement, and a make safe repair has only dealt with the broken and missing palings.
The tree was raised in an email on 15 February 2023 and pruned in July 2024 the lessor failed to action this repair within the legislative timeframe. I find that Ms Frey is entitled to $700 for the respondent’s failure to address this issue. I have calculated this amount based upon a rent reduction formula of 5% noting the impact of this breach on the utility of the backyard and ongoing concerns around the safety of the home, allowing 4 weeks for the work to be completed.
The mould was reported in a Notice to Remedy dated February 2024 (no date was included in the NTR, only month and year) and remained outstanding at the date of hearing. The mould has resulted in the loss of use and amenity of a bedroom and parts of the kitchen and dining area. There is currently no evidence before the Tribunal that the mould has resulted in medical issues. The Tribunal orders $2200 for this breach. I have calculated this figure using a rent reduction formula of 35%, from March 2024 until 2 September 2024, allowing at least 7 days for the repairs to be carried out.
I found Ms Frey to be a witness of credit and believe her when she says that she had to throw a mattress out because of the water ingress. Moreover, the respondent’s table and the applicant’s evidence relating to the water ingress suggest that it is more likely than not that one of the children’s mattresses had to be thrown out due to the water ingress in that room. The Tribunal orders $550 as compensation for the cost of replacing a mattress.
As noted above, the ongoing issues pertaining to the condition of the premises have caused Ms Frey and her family to suffer significant losses over several years including the loss of pets, loss of sleep, anxiety, stress, frustration and shame. These experiences have resulted from the direct actions of the respondent in failing to maintain the premises in a reasonable state of repair and thereby causing interference with the reasonable peace, comfort and privacy of the applicant in the use by her of the premises.[14] The Tribunal orders $4,000 in compensation in relation to this breach.
[14] RT Act cl 52
The Tribunal Orders that:
(a)The respondent is liable to pay compensation to the applicant for loss suffered by the applicant as a result of the respondent’s failures to make repairs and interference with the reasonable peace, comfort, and privacy of the applicant in the use of the premises as follows:
(i)     $4,000 general damages for loss of enjoyment of the use of the premises;
(ii)     $12,000 for failure to address maintenance issues which caused water leak;
(iii)    $5,000 for failure to repair the fence;
(iv)    $2,200 for failure to address mould growing in the children’s bedroom (bedroom 2) and kitchen/dining area;
(v)     $700 for failure to prune the overhanging tree;
(vi)    $550 for loss and damage to the applicant’s personal property.
(b)The respondent must pay the sum of $24,450 to the applicant into the applicant’s nominated bank account by 20 December 2024.
(c)The respondent is to apply a 100% rent reduction from 2 September 2024 until the last of the following conditions are met:
(i)     The mould has been removed and the ceilings in bedroom 2 and the kitchen have been replaced, and
(ii)     A report must be filed with the Tribunal within 21 days of the completion of the work in (i) from a mould expert certifying that the property is no longer affected by mould, and
(iii)    The fence is replaced with a new fence, and
(iv)    The water leak has been fully resolved, and the roof and fascia are replaced and made good.
(d)Order 3 expires at the earliest of:
(i)     2 September 2025; or
(ii)     the date that the applicant is permanently relocated to new accommodation.
(e)The application is otherwise dismissed.

………………………………..

Member P Hatami

Date(s) of hearing:	02 September 2024
Applicant:	In person
Respondent:	Ms A Aidman, ACT Government Solicitor