G MacFayden and Anor v G Tadrosse

[2014] NSWCATCD 194

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Kastrounis v NSW Land & Housing; Kastrounis v Housing NSW [2014] NSWCATCD 194
Hearing dates:	12 June 2014
Decision date:	22 October 2014
Jurisdiction:	Consumer and Commercial Division
Before:	G Meadows, Senior Member
Decision:	The respondent is to carry out the following works within 60 days of the date of these orders: arrange an investigation by a qualified electrician to investigate whether water ingress is causing a safety hazard within the premises including in relation to every light and power outlet, and to provide either a certification that the system is safe or a scope of repairs that may be required; to properly fix the toilet bowl to the floor; to arrange an investigation by a suitably qualified building consultant or engineer that no wall within the premises is so affected by water ingress or water damage as to be about to cave in or collapse, and to provide either a certification that the wall is safe or else a scope of work to repair any wall; The applications are otherwise dismissed.
Legislation Cited:	Residential Tenancies Act 2010 Consumer Trader & Tenancy Tribunal Act 2001 Civil & Administrative Tribunal Act 2013
Category:	Principal judgment
Parties:	Jody Kastrounis (applicant) NSW Land & Housing Corporation Housing NSW (respondent)
Representation:	Applicant in person Ms Ludmila Wicks and Mr Gary Fulbrook for respondent
File Number(s):	SH 12/54553 and SH 13/55248
Publication restriction:	Nil

Judgment

1. There being some confusion as to which matters commenced by the applicant are still current, and what claims are made in each current application, it is necessary to set out some of the history of these applications.

2. Matter SH 12/54553 was commenced as long ago as 30 October 2012. It was brought pursuant to s45 of the Residential Tenancies Act 2010 and sought:

“An order reducing the rent payable while the premises are unusable, or uninhabitable or destroyed.”

The application included voluminous (but largely illegible) copies of photographs, submissions and lists of alleged repairs needed.

3. SH 12/54553 was listed for a conciliated hearing on 05 December 2012 and was adjourned on that occasion. The file contains notations to the effect that:

“Meeting with team leader on 12 December to discuss repairs.

Will withdraw claim if matters settles [sic] prior to next hearing.”

The matter was adjourned without further orders or directions being made. The next hearing was listed for 1 February 2013 but was apparently amended at the request of the applicant who advised the Registry she was only available Monday to Thursday. The matter was then relisted for 4 February 2013. Somewhat unusually, the matter was listed for a further conciliated hearing on that date.

4. On 4 February 2013 there were further discussions seeking to resolve the application. Notes on the Tribunal file state that the respondent:

“agrees to arrange an inspection of the property on or before 18/2/13 to determine what repairs the respondent will undertake. … The applicant will be provided with a list of agreed repairs.

The parties seek to have this matter adjourned until after 28/2/13.”

Formal orders were made giving effect to that agreement.

5. The matter was listed for yet another conciliated hearing on 7 March 2013. On that date the Tribunal file notes:

1. The DoH has agreed to the repairs in Annexure “A” to be completed on or before 11.4.13 except for carpet repairs to be completed on or before 27.6.13, and except for items marked “POW” (”programme of works”).

2. Applicant has right to relist these proceedings up to & including 31 October 2013, by making such application to the Tribunal.”

6. Annexure “A” was as follows:

• “5 Wellington St Waterloo

• Front fence (POW)

• Front gutter (POW)

• Window upstairs external reveals (POW)

• Front twin doors — patio bolt ??? (No access inside to make a decision on repairs).

• Carpet smooth edge nails coming through carpet — defect from contractor, contractor will be required to attend to rectify when client removes all boxes, storage items, etc as rooms are completely full (fire and OH&S concerns).

• Power point in kitchen, one side not working — order will be raised.

• Kitchen (POW)

• Water entering window that sill was replaced, side architraves need to be sealed — order will be raised.

• Birds maybe entering roof at gutterline to rear roof — order to be raised.

• Paling fences general — poor to fair condition (No action — monitor).

• Rear post has crack at bottom — (Structurally sound, bolted — monitor). POW [italicised hand-written addition]

• Replace Bird Spikes — Rear (Yes).

• Ease windows painted closed — (Yes).

• Gutter clean/clear rear — (Yes).

• Tree branches from Lane next door neighbour — further investigation required. [Italicised addition hand-written]

• Paving rear yard — order to be raised.

• Rear gate - further investigation required.

• Refix Rear Screen Sliding Door - further investigation required when Client's items have been removed.

• Stove — Griller not working (Client to phone Housing Call Centre).

• Shaving cabinet upstairs — order to be raised for replacement.

• Crack tiles in Shower — order to be raised.

• Replace tiles around toilet cistern — order to be raised.

• Replace tiles around architrave to shower — order to be raised.

• Hole to Bath [room] Entry — order to be raised for repair [Italicised addition hand-written]

• Refix door Furniture to Dwelling—check all rooms [Italicised addition hand-written]”

Formal orders were made giving effect to that agreement.

7. Some time later, being 22 October 2013 (and noting paragraph 5(2) above), the applicant filed a fresh application in the Tribunal, SH 13/55248. In that application the applicant sought the following orders:

“pursuant to s65(1)(a) an order that the landlord carry out repairs;

pursuant to s61(2) compensation for loss of curtains, curtain rods and brackets.”

The applicant completed question 12 on the application form as follows:

“What are your reasons for requesting the above orders?

1. TV antennae—not positioned properly, television reception problems. RN 9229611/i!

2. Sliding door at back of house No. RN 229616.3

3. Sliding screen door at back of house—would not give job number.

4. Tiles cracking in Bathroom shower area and subsequently in Wall beside. Would not give job number.

5. Bathroom wall cracked, water leaks down to next level. RN922625/

6. Water meter at front of house leaking continuously. RN 9229629

7. Cement at base of toilet cracked and toilet not secure.

8. Post holding edge of roof being eaten by termites.

9. Brackets, curtain rods and curtains removed by painter and lost.

10. Provide concrete ramp for disabled resident.

11. Fly screens on windows do not fit—gaps allow insects to get in.

12. Upstairs window stuck, too difficult to open.”

8. Matter SH 13/55248 was listed for hearing before me on 9 December 2013 (changed from 12 December 2013 at the applicant’s request). I note that on that occasion, the applicant represented herself and the respondent was represented by Ms Wicks and Mr Fullbrook, as on this occasion.

9. Also on 22 October 2013, the applicant filed another application, being an application to renew proceedings which was given the number SH 13/55308. The applicant answered question 4: “What order have you already obtained?” by writing: “Orders: SH 11/30755 & Order No. SH 12/34607” and stated that the date on which those orders were received was 7 March 2013. This matter was also listed for hearing on 12 December 2013 and again had to be changed (as the applicant was unavailable) to 9 December 2013.

10. As a result, matters SH 13/55428 and SH 13/55308 were both listed before me on 9 December 2013. Matter SH 12/54553 was not listed for hearing.

11. On that date it was obvious there was some confusion as to which matters were current and which were supposed to be heard on that day. Following some discussion and investigation of associated files by me, I determined that matters SH 11/30755 and SH 12/34607 had been finalised. For the sake of completeness, I note that SH 12/34607 was decided on 12 July 2012, orders being made for the payment of a small sum of compensation to the applicant and an order capping the weekly rental until the respondent carried out a certain repair. SH 11/30755 was in fact a renewal application of SH 09/47478 and it was withdrawn pursuant to s 28(5)(h) of the Consumer Trader and Tenancy Tribunal Act 2001 (“CTTT Act”) on 23 February 2012.

12. Further on that day, I determined that SH 13/55308 (the renewal application filed on 22 October 2013) was out of time in relation to matters SH 11/30755 and SH 12/34607 and in fact did not mean to seek renewal of those two matters anyway. The applicant was seeking to renew SH 12/54553. I dismissed SH 13/55308 as having been opened in error and treated SH 12/54553 as having been opened by renewal. I then proceeded to make directions in relation to the two current matters, SH 12/54553 and SH 13/55248. The two matters now before the Tribunal are therefore the renewal of SH 12/54553 in which the applicant is alleging the respondent has failed to complete all or some of the matters agreed in “Annexure ‘A’ ” on 07 March 2013, and SH 13/55248 which listed 12 matters requiring repair which were not included in “Annexure ‘A’ ” on 7 March 2013.

13. Finally, on 9 December 2013 I made orders adjourning SH 13/55428 and SH 12/54553 for hearing and made orders for the parties to file and serve their evidence, the applicant by 12 February 2014 and the respondent by 07 March 2014.

14. Again for the sake of completeness, I note the following correspondence received from, or rather on behalf of, the applicant, by facsimile on 11 February 2014:

“I am writing an urgent matter on behalf of Jody; a staff from South Sydney Community Aid (SSCA). She has a reading disability and has difficulty expressing herself clearly of this matter.

“She would like to request an inclusion of SH 13/55308 without extra payment, in the hearing set on the 18th of March 2014. As it is an urgent and dangerous issue regarding the bathroom leaking water heavily into the house, it has being a problem for eight months, since July 2013 and many minor incidents has occurred due to this problem. Her main concern now is that it can affect the power supply, and can result to electrocuting her family members whom are either the elderly or young.

…

As a feedback, Jody would like to suggest that only one file number for all her files and only the proceeding codes-after the slash needs to be changed as it can be easily misunderstood and confusing if she has more like one issue she has to deal with.”

15. The Registry wrote to the applicant on 25 February 2014, advising that SH 13/55308 “is finalised and cannot be reopened” (see paragraph 12 above) and that file numbers of the remaining current files cannot be merged.

16. Both current matters were set down for hearing on 18 March 2014. However, on that date the matters were further adjourned to a later hearing date. Notes on the Tribunal file indicate that the applicant was seeking:

• branch removed;

• trees still need action;

• bathroom tiles buckling and splitting;

• water pouring from upstairs—new issue.

Detailed orders were made for the service of evidence by both parties, that timetable later being amended. The notes on that date note that while the applicant alleged her evidence was already given to the respondent, the respondent denies her evidence is on their file. The applicant was ordered to re-serve her evidence and it was noted the hearing on the next occasion would proceed even if the evidence was not served. Orders were also made for the presentation of the parties’ evidence in a folder, with an index.

17. By these tortuous routes, these matters were finally heard on 12 June 2014.

Applicant’s Evidence

18. The applicant has provided several bundles of evidence in different formats, including via a usb stick, for which I gave leave in recognition of Ms Kastrounis’ particular disabilities—well known to the respondent.

19. One bundle of evidence was filed on 14 February 2014 in the Registry. This bundle includes both clear colour photographs of various parts of or items in the subject residence, unclear black and white photocopied photographs, submissions prepared at different dates and a variety of correspondence, including with members of parliament and others not strictly related to the hearing. Some of the documents relate to issues or discussions from past years, including in relation to prior Tribunal matters.

20. Another bundle of evidence was filed in the Registry on 16 April 2014. This bundle could also be characterised in similar fashion as in the previous paragraph. There are several medical certificates from various dates, including certificates for Ms Susan Mundy who I understand is the applicant’s mother. These documents also cover a period of several years.

21. On the same date the applicant left with the Registry the usb stick mentioned previously. This device contains numerous photographs of the interior and exterior of the premises, a number of video recordings also of the interior and exterior of the premises and scanned copies of some at least of the documentary evidence just described. Also included in the applicant’s evidence are copies of notes written by her support person who attended various hearings with the applicant in the Tribunal.

22. A large part of the evidence previously described was also filed with the application form in SH 12/54553.

23. A large part of the applicant’s evidence consists of emails or notes of correspondence and telephone calls with the respondent in relation to reporting various items of damage or defects, or complaints that such reports were not acted upon. These notes range back to 2012. It is clear that from time to time the respondent has acted on such complaints, such as arranging for repairs or replacements, trimming trees and similar items, but it is also clear that the applicant has renewed her complaints in relation to some of the same items. I mean no criticism of the applicant, but it is difficult to understand how these issues come together in a structured chronology: that is, the evidence is presented in such a way that the applicant’s complaints appear to be repetitive but may instead relate to renewed damage. This is all the more critical, when the respondent’s evidence is that “all” the issues have been repaired.

24. In a similar fashion, the applicant provides details of criticisms of the behaviour of various employees of the respondent, including allegations of perjury in CTTT hearings. In my opinion, the evidence does not support such allegations although it sometimes appears to me that the applicant merely disagrees with statements of such persons or the various parties may simply have different recollections of events. I mention this issue because the applicant refers to it a number of times but this was not in my opinion proved by the applicant, nor do I find it relevant to the current complaints of the applicant.

25. There are additional complaints relating to injuries allegedly received by the applicant and also by her mother due to “slip and fall” type incidents, including tripping on a carpet and slipping in the bathroom. Some of the medical certificates provide limited or no information, in some cases not even a date. I am unable to deal directly with such complaints and I do not understand the applicant to be seeking any form of compensation, but I take such reports into account in attempting to come to conclusions about the physical state of the premises from time to time.

26. A major feature of the applicant’s evidence is related to circumstances in 2012 when from approximately June to October (in any case a period of about 4 months, according to the applicant), the applicant and her family had to vacate the premises the subject of this application and move to temporary accommodation while the respondent made certain repairs to the subject premises. Complaints are made in relation to storage of the applicant’s property during that period, although the respondent insists those costs were covered by the respondent and have been paid. Complaints are also made in relation to gas being switched off, apparently on moving back into the subject premises, and on the lack of facilities in the temporary premises. It does not appear that the applicant is making any current complaints in that regard (except for storage costs) and I do not consider that evidence further. Much of the evidence is dated to 2012 although it was served in connection with the current proceedings in 2014.

27. To the extent that the applicant is relying on this evidence from previous years to support her claim that repairs have not been conducted for several years, I take that evidence into account, subject to the applicant demonstrating there is a current problem in each case.

28. I am satisfied that in relation to SH 13/55248, the current complaints of the applicant include:

1. water leaking in the bathroom;

2. cracked tiles in the bathroom;

3. water damaged wall “is about to cave in”;

4. water seeping from light at the top of the stairs;

5. crack in bathtub;

6. deteriorating lino in the kitchen;

7. the backyard is not level and paved;

8. the back fence is deteriorating due to termites;

9. a supporting beam has been eaten by termites; and

10. the window frame of the upstairs bedroom is damaged by termites.

11. brackets, curtain rods and curtains removed and not replaced.

Not all of these items were in the application as filed, but it appears from the voluminous submissions and evidence provided by the applicant have included these complaints.

Respondent’s Evidence

29. On 14 May 2014 the respondent filed its evidence consisting of 19 pages of documents (including the cover letter and Tribunal orders, correspondence and some documents already served by the applicant). The only additional items were a letter dated 13 May 2014 to the applicant advising that a Senior Technical Officer, Mr Garry Fullbrook, wished to carry out an inspection of the applicant’s home, a computer printout of works done or work orders and a copy of the respondent’s television antenna policy.

Evidence and submissions at the Hearing

30. The applicant relied on her documentary evidence to support her oral submissions that the various defects had not been repaired or, if they had (as in some cases the applicant conceded), the repairs were either not effective or had later failed. For example, the applicant complains that her toilet bowl is still not properly fixed to the floor even though it has been repaired several times. She denies the response of the respondent that she has not allowed the repair to properly dry and cure before using the toilet.

31. The applicant also submits that new defects are appearing over time and that although some of the complaints date back several years, neither the old complaints nor the new complaints are being attended to. The “old complaints” are generally those referred to in SH 12/54553 while the “new complaints” are those included in SH 13/55428. However, the applicant also complains of additional matters which do not appear to have been specifically referred to in these two applications, including in particular complaints about trees, tree branches and the effect of leaf litter falling into her back yard and causing a hazard as they rot down. A considerable portion of the photographic material relates to trees and branches. Unfortunately, the photographs are not labelled or described and it is often difficult to understand the purpose of their inclusion. I make the same comment in relation to the video recordings on the USB stick: some seem to relate to the applicant’s complaint that she does not receive a high quality television picture, but others cannot be understood.

32. The respondent’s attitude is generally that all the works complained of in “Annexure ‘A’ ” have been completed except for “POW” works. The respondent indicated that from time to time (and, in all, quite frequently) they have attended the applicant’s premises to inspect and identify issues and to repair issues. The usual, or rather, common complaint is made that it is not always possible to get access but in my opinion after listening to the parties, that is not a major issue. Certainly the respondent has conducted a great deal of work within the applicant’s premises. Nevertheless, submits the applicant, numerous issues remain unresolved.

Legislation

33. In SH 13/55248 the tenant seeks orders pursuant to the following sections of the RTA:

61   Tenant’s remedies relating to access to premises

(1)   …

(2)   The Tribunal may, on application by a tenant, order the landlord or the landlord’s agent to pay compensation to the tenant for damage to or loss of the tenant’s goods caused by any person in the exercise of a power of the landlord or landlord’s agent to enter residential premises under this Act or the residential tenancy agreement.

65   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,

(b)   an order that the landlord reimburse the tenant an amount for urgent repairs carried out by the tenant.

(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.

(4)   Reimbursement for urgent repairs

The Tribunal may order that the landlord reimburse the tenant an amount for urgent repairs carried out by the tenant if it is satisfied that the landlord has failed to reimburse the tenant for the costs in accordance with this Division.

(5)   Payment of rent into Tribunal

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

34. In SH 12/545532 the tenant claims pursuant to s45 of the Act:

45   Remedies for reduction of rent on frustration of residential tenancy agreement

(1)   The Tribunal may, on application by the landlord or tenant, make an order determining the amount of rent payable if the rent is abated under section 43 (2).

(2)   The Tribunal may order that:

(a)   from a specified day, the rent for the residential premises must not exceed a specified amount, and

(b)   the landlord must repay to the tenant any rent paid by the tenant since the specified day that is in excess of the specified amount.

Note. The residential tenancy agreement may also be terminated in these circumstances (see section 109).

35. As will be considered further below, in my opinion the following sections of the Act are also relevant.

36. A landlord has certain general obligations under the RTA 2010 which are also mandatory terms of any residential tenancy lease. Section 52 states:

52   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.

(2)   A landlord must not interfere with the supply of gas, electricity, water, telecommunications services or other services to the residential premises unless the interference is necessary to avoid danger to any person or to enable maintenance or repairs to be carried out.

(3)   A landlord must comply with the landlord’s statutory obligations relating to the health or safety of the residential premises.

Note. Such obligations include obligations relating to swimming pools under the Swimming Pools Act 1992.

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

37. Section 63 of the RTA 2010 relates specifically to repairs but contains a significant proviso:

63   Landlord’s general obligation

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

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

(3)   A landlord is not in breach of the obligation to provide and maintain the residential premises in a reasonable state of repair if the state of disrepair is caused by the tenant’s breach of this Part.

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

Section 63(1) states that the condition of “a reasonable state of repair” is to be considered “having regard to the age of, rent payable for and prospective life of the premises”. In my opinion, that sub-section requires the Tribunal to take account of the fact that:

1. an old building cannot be expected to be in as good a state of repair as a relatively recent building and that some items may be obviously damaged due to wear and tear over long periods of time, storm or termite damage, general deterioration in materials and similar;

2. a tenant paying a low rent is expected to accept the fact that, for example, such damage and deterioration as mentioned in the previous sub-paragraph is reasonable and may not be rectified given the low rent; and

3. if the building is old and may reasonably be expected to have a limited “life expectancy” then it is not reasonable to expect or require a landlord to undertake major repairs, such as, for example in a particular case, replacing walls, replacing the roof and similar.

38. However, the landlord must, of course still comply with s52 of the Act, in particular that the premises must be habitable and also with the general duty to ensure that the premises are safe. I have had regard to those issues in the consideration below.

39. Considering those two sections together, in my view the applicant must expect and accept that the general level of repairs may not be optimal or may not be to a high aesthetic standard, and the respondent will not be at fault, but the tenant is able to expect that the premises will be reasonably clean and “fit for habitation”. Even if this building meets the three criteria discussed in the previous paragraph, that does not relieve the respondent from the duty to provide reasonably clean premises, safe premises, and premises fit for habitation. It is therefore necessary to consider these applications in those terms.

Consideration and Decision

40. I am not satisfied the applicant has demonstrated that the respondent either has not installed television antennae or associated wiring improperly, nor that the respondent is in fact responsible for doing so. The evidence provided by both sides does not permit a clear decision on this issue. The respondent submits that the wiring as installed is all related to the applicant’s premises and that there is nothing further for them to do. The applicant simply denies that is the case and complains of bad reception. On balance I cannot find the applicant has proved this item.

41. In general, the parties agree, and the photographs amply demonstrate, that the premises are quite old and certain items are in poor condition, including various items of the wooden structure such as what appear to be supporting poles or beams. There is no evidence that these signs of deterioration create a safety hazard although they are unsightly. These items appear to be, and I find, subject to possible rectification based on what the respondent calls a “programme of works”: items which are not repaired as soon as possible after a complaint is made but will be included in future works to be undertaken. I am not satisfied the applicant has demonstrated such works should be undertaken more urgently subject to an order of the Tribunal to do so. . I have considered in this regard the provisions of s63(1) extracted above.

42. Some of the applicant’s complaints are in my opinion not the responsibility of the respondent. In particular, complaints in relation to trees being unsafe, intrusive or prone to drop branches are, on the evidence provided, the responsibility of the respondent but subject to orders or permission of the relevant local authority. I am satisfied that from time to time the council has been approached for permission to remove or trim trees and such permission has been denied. In my experience, this Tribunal has no power to order the Council to give such permission and nor can the respondent carry out such works without that permission. It is clear that this causes distress to the applicant (and members of her family) but on the current law I am unable to resolve those problems.

43. A matter of considerable concern relates to the applicant’s complaints that water ingress into various electrical wiring or power points is causing a safety hazard. The respondent denies that there is an issue while the applicant claims she has seen such water entry and has heard noises. The evidence is not sufficient to decide this matter either way in my opinion, but the issue is sufficiently serious to require appropriate investigation by a qualified electrician. I find this is the case even if such an investigation has been undertaken previously, given the potential hazard. The respondent will therefore be required to arrange such an investigation and to provide either a scope of repairs required, or proper certification that the electrical system is safe. This inspection is to include but is not limited to the complaint of the tenant that “water is seeping through the light at the top of the stairs”.

44. I am also satisfied that the toilet bowl is not securely fixed to the floor. There is a dispute between the parties as to how that has occurred, given that the toilet bowl has been repaired at least once previously (and perhaps more than once). Whatever the reason, the bowl requires rectification.

45. In relation to the following items, I am not satisfied that, while the complaints may be correct, they require immediate action by the respondent:

1. the back fence is deteriorating due to termites;

2. a supporting beam has been eaten by termites; and

3. the window frame of the upstairs bedroom is damaged by termites.

It is appropriate that the respondent keeps these items under review for safety reasons but I find they do not require immediate replacement. I have considered in this regard the provisions of s63(1) extracted above.

46. In relation to the complaint of curtains and associated fittings being removed and not replaced, the applicant has asserted this (and it is not specifically denied by the respondent), but has not provided proof either of the appearance of the curtains and fittings before the repainting or of the value of the curtains and fittings. It is not clear that these items were originally provided by the applicant or were part of the furnishings of the premises provided by the respondent. I am unable to find this item proved.

47. The complaint in relation to the back yard of the premises not being paved and not being level (and also subject to the fact that fallen leaves are rotting and making the surface slippery) is not specifically denied by the respondent. However, in my opinion, the back yard is as the premises were originally accepted by the applicant. To the extend she complains of fallen leaves rotting, I cannot accept that is the responsibility of the respondent to rectify. First, as I have found above, the respondent may not legally take action to remove trees or even branches without the prior inspection and approval of the relevant Council. Second, in my opinion it would usually be expected that removal of fallen leaves would be the responsibility of the tenant. I have not been provided with evidence to suggest that usual responsibility has been shifted to the respondent.

48. Another potentially serious complaint made by the applicant is that a water-damaged wall is “about to cave in”: this may be its appearance to the applicant but there is a lack of expert evidence to that effect. It would be unusual in my opinion to require a social housing tenant to retain and pay for independent expert evidence from a building consultant for such an issue, but the tenant can reasonable expect the landlord to investigate and certify that the wall is safe. As in paragraph 43 above, the respondent is required to investigate this complaint by a suitably qualified building consultant or engineer and is to provide either a certification that the wall is safe, or a scope of works and a timetable for rectification works.

49. In my opinion, the other matters complained of and set out in paragraph 28 above are also subject to the provisions of s63(1) of the Act. I am conscious that in coming to that conclusion, I am stating that although the conditions occupied by the applicant and her family are less than optimal, but I consider that is the effect of that section. The issue is, what is the reasonable standard to be expected and that question is answered having regard to the provisions of the Act, not what may be expected in a new or newer home.

50. In relation to the complaints of the applicant that the works required by “Annexure ‘A’ ” as set out above, there is a clear dispute between the parties as to whether these have been rectified and if so, whether they or some of them have become defective since the repairs.

51. First, I am satisfied that the respondent has at least attempted to repair the items the subject of that prior agreement. The applicant’s evidence is not well-presented in regard to the chronology of repair works and any further or new deterioration. It is not reasonably possible to make specific findings in that regard.

52. Furthermore, in my opinion, once the respondent has carried out repairs pursuant to that agreement, it has complied with the orders of the Tribunal. The orders were not of the form that specific items were to be repaired and kept in a certain state of repair, only that they were to be repaired. Some items may be subject to further or different defects, some may require regular maintenance which may be the responsibility of the applicant or the respondent. The evidence does not permit a clear decision in that regard. On balance, I find that the respondent has complied with the consent orders to rectify the relevant items contained in “Annexure ‘A’ ”.

53. For these reasons the orders above are made. The applications are otherwise dismissed.

G Meadows

Senior Member

Civil and Administrative Tribunal of New South Wales

22 October 2014

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: 27 January 2015