Gawronski v NSW Land and Housing Corporation

[2023] NSWCATCD 34

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

Gawronski v NSW Land and Housing Corporation [2023] NSWCATCD 34

Hearing dates:

15 November 2022 and 16 February 2023

Date of orders:

09 May 2023

Decision date:

09 May 2023

Jurisdiction:

Consumer and Commercial Division

Before:

C Campbell, General Member

Decision:

1. The tenant’s rent is not to exceed $30 per week from 16 June 2022 to 06 July 2022 in accordance with s 44(1)(b) of the Residential Tenancies Act 2010.

2.   The application is otherwise dismissed.

Catchwords:

Rent reduction – Compensation – Res judicata - contempt

Legislation Cited:

Residential Tenancies Act 2010

Cases Cited:

Port of Melbourne Authority v Anshun 147 CLR 589

Category:

Principal judgment

Parties:

Peter Gawronski (Applicant)
NSW Land and Housing corporation (Respondent)

Representation:

Counsel: N/A

Solicitors: N/A

File Number(s):

SH 22/28829

Publication restriction:

NIL

REASONS FOR DECISION

The Application

1. This application seeks the following orders:

• An order for the respondent to implement a waste management system as previously ordered by NCAT

• Orders pursuant to section 63(1) and 44(1)(b) of the Residential Tenancies Act 2010 (“the Act)

2. The applicant appeared in person and the respondent was represented by its in-house tenant advocate Mr White.

3. Under the heading REASONS FOR ORDERS in the application is the following:

Housing are in breach of 5 court orders. I’m making an application that housing should be taken to the Supreme Court for contempt of said orders.

4. The cover sheet on the tenant’s bundle of evidence filed in the tribunal on the 10 October 2022 states inter alia:

Just a note to make it clear of my intentions in SH 22/28829 Land and Housing Corporation is in breach of orders by NCAT to implement a new waste management system on our buildings. This has not happened, they are in contempt of said orders. I have made it clear in my application or so I thought that this was my intention. Put simply LAHC NSW should be taken up to the Supreme Court for this matter to be heard as a contempt of NCAT previous orders….

Documentary Evidence

5. The tenant relies on three bundles of documents that include:

1. Previous orders

2. Time Lines commencing from 2018

3. 450 pages of photographs

4. Cleanaway Residential Waste Management Plan

5. Witness statements

6. Letters to housing

7. Parliamentary Inquiry 2021

8. Statutory declarations

6. The landlord relies on two bundles of documents that include:

1. Written submissions dated 01.11.22

2. The residential tenancy agreement

3. Previous NCAT orders

4. Letter to the landlord dated 20.06.22: Decomposing Rats/ Dead Body rent reduction

5. Photographs

6. Statement of Mr De Villers 10.09.21

7. Cleanaway Residential Waste Management Plan

8. Notice to Residents – Bulk Household Waste Collection 13.12.19

9. City of Sydney Bulky Waste collection

10. Ventia Contractor Service record 03.09.22

Applicant’s Application for Contempt Orders

7. At the commencement of the hearing on the 15 November 2022 the applicant confirmed the order sought was as per the application and his written submissions, which are extracted above. He asked the tribunal to make an order for contempt on the grounds the landlord had failed to comply with previous orders.

8. The tribunal informed the applicant that it had no power to make those orders in these proceedings. The applicant was informed that to seek orders for contempt he is to file a Miscellaneous Application. He was also informed the registry would provide him with assistance in relation to obtaining a copy of the Miscellaneous Application document. The tribunal then enquired of him whether he wished to withdraw the present proceedings.

9. The tenant declined to withdraw these proceedings.

Claims Pursuant to Sections 63(1) and 44(1)(b)

10. The tenant said the landlord has failed to maintain the premises in a reasonable state of repair. The basis of this allegation is the landlord failure to comply with the Cleanaway Waste Management Plan (‘WMP”) dated May 2019 a copy of which is before the Tribunal. The tenant relies on the 450 pages of approximately 900 photographs.

11. He referred to the key objectives in that report, he said the capacity figures in the WMP do not meet the capacity. He relied in part on photographs dated December 2021 which show a large plastic bag having been left by an unknown person near a bin chute. He said it was left there because it did not fit into the chute.

12. The tenant said the landlord’s failure to implement the WMP has led to an increase in the rat population. He has a ground floor unit and he keeps a vegetable garden outside. The rats are eating his vegetables. He has baited the rats himself and has managed to grow some tomatoes.

13. He conceded that he keeps pet birds within his unit and he has to keep the windows closed as he fears the rats will attack his pet birds which he keeps inside his unit.

14. Another issue is the landlord has failed to make adequate provision for the removal of the tenants’ bulky waste.

15. He gave extensive evidence about the bulk waste disposal. He said the landlord has a duty to help the tenants dispose of their bulk waste. He said there is bulk waste all over the garden. He has provided photographs where large items have been placed around the bins in the garden. These include chairs, furniture fridges. He saw one tenant dumping carpet on the street footpath. He spoke to her and said that it is illegal to leave it there. He told her to bring it back into the front yard.

16. He has reported the illegal dumping on the street to the council. This is also increasing the rat population.

17. The household rubbish is removed three times per week. At the end of the week the garbage bins are taken out to the street by the landlord’s contractors on a Friday. They are emptied by the council contractors on the Saturday. They are left outside on the street for 24 hours. This is another contributing factor to the cause of the rat problem,

18. In his opinion all the waste issues revolve around the movement of bins.

19. There is a garbage chute just outside his front door. When it gets full the tenants on the above floors continue to shove their rubbish into the chute. In his opinion there are not enough bins. The amount of rubbish is now overwhelming the WMP. He conceded there is more and more waste being created by the tenants.

20. The rubbish is the cause of the increase in the rat population.

21. The landlord’s contract cleaners are not doing their job properly. They do not empty their buckets between cleaning the various foyers. They just push buckets of dirty water around. There are five cleaners who clean for 100 hours per week.

22. He had photographs of the foyer areas, which he conceded appeared to be clean and clear of any items. The floor tiles look clean, but really they are dirty. This is because the tiles are an orange colour, and it is this colour which disguises the dirt.

23. The tenant seeks a 33% rent reduction per week commencing from the 14 April 2022 for 12 months in accordance with s 44(1)(b) of the Act on the grounds there has been a withdrawal of services arising out of the breach by the landlord to implement the WMP.

24. On the 16 June 2022 he reported to the landlord there was a bad smell near his unit. The landlord did not do anything about it. Eventually it was reported to the police who attended 13 days later and found his near neighbour had died and the foul odour was his decomposing body. It took a further week for the forensic cleaning to be completed.

25. He said the smell was making him physically ill.

26. The applicant seeks a full rent abatement for the three week period he had to live with the terrible odour. This is in addition to the rent reduction referred to above.

Landlord’s Evidence

27. The landlord submitted that the tenant’s application centres around an allegation that the landlord is in breach of its obligations as it has failed to comply with previous orders made by the tribunal concerning the WMP.

28. The tenant’s submission overlook the fact that on the 28 October 2019 the tribunal made findings that the landlord has complied with the WMP.

29. On the 20 May 2021 the applicant filed application SH 21/22309 initially seeking an order pursuant to s 44(1)(b) for a rent reduction due to the smell of a decomposing rat under his floorboards.

30. That matter came before the tribunal on the 16 June 2021 the Tribunal granted the applicant leave to amend the application to include:

An order that the rent payable between 13 May 2021 and 20 May 2021 be reduced due to reduction or withdrawal of goods, services and facilities…due to decomposing odorous rat carcass.

An order pursuant to s 65 (1)(a) for the landlord to carry out repairs to the residential premises including the common property to prevent rats from entering his premises.

The applicant has leave to amend the claim by 07 July 2021 to apply for an order in relation to the “waste management system” associated with the residential premises. A copy of the amended claim is to be provided to the Divisional Registrar and the other party. It is to state the specific orders sought and the grounds (or legal basis) for that order.

31. That application was next before the Tribunal on the 14 October 2021 when the Member made further directions in relation to the service of documents, and he also made the following orders:

2.    By consent on or before 28 October 2021 the respondent is to repair the garbage chute by replacing the metal plate. The repair is to ensure that the bin chute closes tightly and there is no gap which would allow the entry of vermin into the garbage chute area

…

9.   The respondent will comply with the Residential Management Plan prepared by Cleanaway for the respondent in May 2019.

10.   By consent the applicant is granted leave to renew these proceedings at any time before the 14 April 2022 if these orders are not complied.(sic)

32. The respondent completed the repair on the metal plate on the chute door on the 29 October 2021. On the 19 November 2021 the matter was back before the Tribunal and an order was made that the rent be reduced to $nil from 13 May 2021 to 20 May 2021.

33. The applicant never sought to renew those proceedings. It is the respondent’s submission that he was granted leave to amend that application to seek orders in relation to alleged non-compliance with the WMP. He failed to do so.

34. The landlord submits the tenant is now estopped from raising those same issues in these current proceedings. It relies on the doctrine of an Anshun estoppel: Port of Melbourne Authority v Anshun 147 CLR 589. The estoppel in that decision prevents a party from making a claim in subsequent proceedings if that claim or issue is so closely connected with the subject matter of the earlier proceedings that it was unreasonable for them not to have been raised in the first proceedings.

35. The tenant has not identified any actual non-compliance with the WMP, which he claims is the basis of this application. Nor has provided any evidence of a failure by the landlord to maintain the premises in a “reasonable state of repair…” in accordance with s 63(1)(a) of the Act.

36. The landlord repaired the garbage chute plate in accordance with the consent orders made in SH 21/22309. What the applicant omitted to say is that in late 2020 the landlord retro fitted larger bin chute doors which accommodated much larger garbage bags than the original chute doors. This was work which was over and above the Cleanaway recommendations. This is referred to in the statement from Mr Villiers dated 17 September 2019 and included with the landlord’s evidence. Mr Villiers is the Director of the respondent’s Operations Unit.

37. Apart from the issue relating to the deceased neighbour, the balance of the tenant’s evidence relates to the WMP. However, he failed to reference any of his evidence to the contents of the WMP. Relevantly the WMP makes no reference to common area garbage bins.

38. It is apparent from the applicant’s evidence that the waste is overwhelming the chute areas and other areas including when the bins are on the street waiting for the council collection. The rubbish is being left by persons unknown.

39. It appears there is excessive rubbish being dumped by residents or other people living in the local area. The council pick-up has been increased to three times per week. The landlord has been unable to get the council to agree to a certain time, such as early morning.

40. There is a weekly service for bulk waste removal.

41. Many of the photographs relied upon by the tenant do not depict his building. They depict other buildings. The photograph of the dumped household furniture is not on or adjacent to the tenant’s building. It was left there by some unknown person. It appears the tenant is seeking a remedy for the entire complex including the neighbouring buildings. This is not a class action.

42. The cleaners move the bins from the chutes to clean the area around the bins. The photograph of the bin being outside may have been taken when the area was being cleaned.

43. On or about the 13 December 2019 the landlord sent a two page Notice to All Residents with information concerning bulk waste disposal. It informed the tenants there was a designated area on site for them to leave their bulk waste. It informs the residents that Sydney City Council will collect the bulk waste from the designated collection point once a week commencing from 20 December 2019. A copy of the notice is before the Tribunal.

44. In June 2020 Mr Villiers sent a two page letter to all residents outlining the improvements in relation to waste management. A copy of the document is before the Tribunal. It reiterates the earlier information that Sydney City Council will collect the bulk waste from the collection point once a week.

45. This letter also sets out how the residents can assist with the waste management:

Keep all areas around your home clean and tidy, especially balconies and adjacent areas to remove hiding places where rats would like to nest

Dispose of all rubbish in allocated bins, whether that is down the bin shuts or putting it into the large bins in the common area.

Put all food scraps in a garbage bag and place in secure bin

Do not feed cats, birds or other animals

Do not dump food waste on lawns or garden beds for animals (native birds and animals rely on natural and healthy food sources.

Keep garbage lids secure and not left open

Do not dump waste at bin enclosures outside your building-cleaners are not scheduled to be onsite every day and so will not be available at all times to remove inappropriately disposed of rubbish

Report any maintenance issues immediately on the maintenance line on 1800 422322 and/or illegal dumping of waste to your Tenancy Management team at the Potter Office in Belvoir St Surry Hills

46. The landlord has taken consistent measures to inform the tenants about the general waste management and the bulk waste management. There were two weeks in July 2022 when the residents were informed that Sydney Council would not be collecting the bulk waste because of staff shortages due to Covid 19 and seasonal influenza.

47. The tenant gave evidence that he told the neighbour who had dumped the carpet and underlay in the street to move it back onto the premises. He clearly knew who dumped it but did not notify either the respondent or Sydney Council of the illegal dumping. If it was one of the landlord’s tenants, it could have taken appropriate action.

48. The landlord has no responsibility in relation to bulk waste dumped in the street.

49. The landlord pointed out that at in the tenant’s photographs on pages 244,280,295, 387,399 and 446 that notwithstanding the bins are not full and are in situ people have dumped large bulky waste right beside them. When the bins are not in situ it is because they are in the street waiting to be emptied. Rather that than take their rubbish to the bins on the street, the tenants dump their rubbish on the ground where the bins are usually sited.

50. At pages 433 and 436 of the tenant’s documents there are two photographs taken on the 30 October 2022 showing the ground floor chute being jammed with rubbish. These photographs are taken approximate ten minutes apart. There are no further photographs of that chute being blocked.

51. The bins are taken to the street the day before collection and then moved back inside after collection of the rubbish. This is not an unusual system for any household or domestic rubbish removal. There are residents who dump rubbish on the ground even when the bins are in situ.

52. On the 28 October the Tribunal made findings in matter SH 19/27298 that the landlord had complied with the Cleanaway WMP. On the 14 October 2021 in SH 21/22309 the tribunal made an order that the landlord will comply with the Cleanaway WMP. There is no evidence the landlord has failed to comply with the WMP or the orders of the Tribunal.

53. The landlord complied with the WMP and installed the additional bins stations. The extra bins have created a problem where the residents just dump household rubbish around those additional bin stations. The landlord is not liable for the dumping of household rubbish and bulky waste items around the bin stations, the garbage chutes or on the street by residents. Even Mr Gawronski failed to notify the landlord of the dumped carpet. In accordance with the terms of their residential tenancy agreements the tenants have an obligation to keep the premises reasonably clean.

54. The landlord is overwhelmed by the level of waste. The additional bins have provided additional areas for dumping. It is hard to understand why anyone would walk up to a bin and dump the rubbish next to it, rather than put it in the bin.

55. The landlord has exceeded to recommendations in the Cleanaway WMP. There is no breach by the landlord in relation to the tenant’s claim concerning waste at the premises and no compensation is payable.

56. In relation to the claim concerning the death of the neighbour. The deceased’s premises were not adjacent to the applicant’s premises. their front doors were on opposite sides of the hallway. The applicant says he contacted his client services officer. He thought the smell was coming from a decomposing dead rat under his floor, as this had occurred previously.

57. The landlord does not dispute the police attended 12-13 days after the tenant reported the smell and it took another seven days for the forensic clean to be completed.

58. The tenant did not vacate his premises he remained living there with his birds. He had full use of his premises. No compensation is payable in relation to this incident.

Tenant in Reply

59. The smell of the dead body was overwhelming. He said he is poor and could not afford to move out. He keeps parrots so he could not leave. The landlord was incompetent. They took no steps to undertake any investigation of the reported odour as they thought it was just a rat.

60. The applicant has a chronic health issue. The smell made him feel sick in his own home. He nearly ended up in hospital as a result of nausea and vomiting.

61. The failure to investigate when it was first reported resulted in a breach of his quiet enjoyment for the three weeks.

62. The landlord is making much of having complied with the WMP, but they have not complied with their obligations. The tenants are leaving the rubbish as the bins should be there. It takes too long for the bins to be put back. The bins were placed there as part of the WMP. He conceded the bin chutes were widened but this was only after the tenants pushed the landlord to undertake the upgrade.

63. He said the bins are on the street for three days. They are put on the street on Friday, rubbish is collected on the Saturday and the bins are returned to site on Monday morning. There is now a large bin in the garden, but this is not helping with the rats.

64. There is an ongoing issue with rats and for three years.

65. His front door is two metres from the chute. The smell is present in his lounge room. He cannot open his window as he fears the rats might come in and attack his birds.

59. He said he warned the illegal dumper to move the carpet back onto the premises as he feared she would be fined by the City Council.

60. There has not been compliance with the Cleanaway WMP and that is the basis for his proposed contempt proceedings. The landlord is failing all the tenants in all the buildings.

Legislation

68. The tenant claims the landlord is in breach of s 63 of the Act which states:

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.

69. And as a result of the breach the tenant seeks an order pursuant to s 44(1)(b) of the Act which is in the following terms:

44   Tenant’s remedies for excessive rent

(1) Excessive rent orders The Tribunal may, on the application of a tenant, make any of the following orders—

(a)  …

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

70. The landlord submits that in accordance with s 51(2)(a) of the Act the tenants are to keep the premises in a reasonable state of cleanliness:

51   Use of premises by tenant

(1) …

(2)  A tenant must do the following—

(a)  keep the residential premises in a reasonable state of cleanliness, having regard to the condition of the premises at the commencement of the tenancy,

(b)  …

DECISION

71. I accept the landlord’s submissions that an inference could be drawn from the tenant’s oral evidence that he was presenting this case as an advocate for all these residents in not only his building but all the surrounding buildings which are owned by the landlord. This is not a class action and will not be determined accordingly.

72. I am not satisfied that there is an Anshun estoppel issue to be determined in these proceedings. This application sought contempt orders, and orders for an alleged breach of s. 63 and a rent reduction pursuant to s 44(1)(b) of the Act. The latter claim partially related to the landlord’s failure to respond to the request to investigate the bad odour. This was only reported in June 2022 and was not something which could have been pursued in the earlier proceedings.

73. The tenant included with his documentary evidence copies of previous decisions made by the tribunal in applications filed by him dating back to 2018. What he omitted to address in his oral testimony the orders sought and the findings of the Tribunal:

• SH 18/09299:       On 11 March 2019 Consent work orders were made in relation to the chute and relevantly to the current proceedings three further consent work orders were made for the landlord to:

• (a) “…engage either a waste management consultant or Sydney City council to provide an evaluation report regarding the current waste management system and process”.

• (b) “…having considered the waste management report, the landlord consult with the tenant regarding all viable options taking into account feasibility and cost”.

• (c) “…inspect and review the cleaning of the bins following the implementation of the new cleaning schedule.”

• SH 19/27298:    On the 28 October 2019 the Tribunal found this application was essentially a renewal application of SH 19/09299 as the tenant alleged the landlord had failed to comply with the consent work orders made in that matter

• The tribunal made findings the landlord had complied with all of the consent work orders raised in the SH 18/4913 and the landlord had implemented all of the recommendations in the Cleanaway waste management plan.

74. The tenant did not appeal this decision.

75. At the directions hearing on the 14 October 2021 in matter SH 21/22309 the Tribunal made a consent work order for the landlord to repair a bin chute door. This was undertaken by the landlord. The tribunal also made a direction that the landlord will comply with the Cleanaway plan. The tenant was granted leave to renew the application at any time prior to 22 April 2022.

76. The tenant did not renew those proceedings.

77. The present application was filed on the 27 June 2022. The tribunal informed the tenant that the request for contempt orders to be made against the landlord could not be heard in these proceedings and that he needed to file a separate application.

78. The tenant ventilated all the same issues in regard to the WMP as he previously raised in SH 19/27298. The findings made by the Tribunal in that matter are undisturbed. That is that the landlord has implemented all the recommendations set out in the Cleanaway waste management plan. Including a plan for the removal of bulk waste and the removal of the household rubbish three times per week.

79. I am satisfied the landlord has implemented the waste management plan, that is it has a plan for the removal of bulky waste and the tenant was informed of that plan. The general waste is removed from the premises three times per week.

80. In matter SH 19/09299 the tenant successfully sought orders for the landlord to have an expert third party review the rubbish and waste issues at the premises, provide a detailed report and a waste management plan. This was the done at the applicant’s request. I am satisfied this has been undertaken by the landlord. It appears the tenant now complains that this idea for a waste management system has apparently failed.

81. It is not contested there is a serious issue with the dumping of rubbish and bulk items at the premises. I am satisfied the landlord has provided the extra bins than the number recommended in the WPM. The tenant’s own photographic evidence show rubbish and bulk items being dumped next to what in some of the photographs are empty bins. This is not a breach by the landlord.

82. The tenant complains the bins are taken away three times a week. Seeing the rubbish and bulk waste depicted in the tenant’s photographs, a counter argument could be raised that the bins could be emptied even more frequently. It is inexplicable as to why anyone would leave rubbish at the bin sites when the bins are on the street waiting to be emptied. I assume the majority of the residents would be aware of the days the bins are on the street for emptying and could either take their rubbish out to the bins on the street, or hold onto their rubbish until the bins are put back in situ.

83. In any event none of these issues is a breach by the landlord. I accept the landlord’s submission that those tenants who are dumping their household rubbish and bulk items are in breach of s 51(2)(a) of the Act. The individual tenants have an obligation under the Act and their residential tenancy agreements to keep the premises in a reasonable state of cleanliness.

84. It is curious that notwithstanding the tenant’s clear concern about waste and dumping at the premises rather than report the dumping of the carpet and underlay to the landlord he directed the resident to move the items off the street back onto the premises. The reasons he gave for encouraging her to do this were unsatisfactory and completely at odds with the passion he demonstrated at the hearing in relation to waste issues at the premises.

85. For these reasons I dismiss the tenant’s application for an order that the landlord is in breach of its obligations under s.63 of the Act.

86. I am satisfied that the tenant is entitled to a rent reduction in relation to the odours emanating from the deceased neighbour’s premises. I am satisfied the tenant informed the landlord of the odour on the 16 June 2022. I accept he may have said he thought the smell was coming from a decomposing rat. This had occurred previously. It matters not what was decomposing, the fact is the tenant reported a foul odour and the landlord failed to send anyone around to undertake an inspection at or near the time it was reported.

87. I accept that with the effluxion of time the smell became worse. I accept the landlord’s evidence that the deceased’s premises were opposite the tenant’s, not directly next door, as stated by the tenant. However, I am satisfied that there was a bad odour in or around the tenant’s premises. He didn’t know his neighbour had died, so wherever the premises were located the odour was permeating the tenant’s premises.

88. I am satisfied the odour did represent a withdrawal of facilities at his premises as it permeated his unit. I accept his evidence that he did not have financial means to pay for temporary accommodation elsewhere. I accept the odour did make him nauseous. I am satisfied the deceased’s body was removed by the police 13 days after the tenant made the report to the landlord. I accept the tenant’s uncontroverted evidence that the forensic cleaning took a further seven days after the body had been retrieved by the police.

89. For these reasons I find that in accordance with s 44(1)(b) of the Act the tenant’s rent is not to exceed $30 per week from 16 June 2022 to 06 July 2022.

Orders

90. For all of the above reasons the tribunal makes the following orders:

1. The tenant’s rent is not to exceed $30 per week from 16 June 2022 to 06 July 2022 in accordance with s 44(1)(b) of the Residential Tenancies Act 2010.

2. The application is otherwise dismissed.

**********

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

Amendments

17 August 2023 - Formatting amendments.

Decision last updated: 17 August 2023