Imran v Zhang

[2023] NSWCATCD 159

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Imran v Zhang [2023] NSWCATCD 159

Hearing dates:

17 November 2023

Date of orders:

20 December 2023

Decision date:

20 December 2023

Jurisdiction:

Consumer and Commercial Division

Before:

Dr K M George, General Member

Decision:

1. The respondent Xiaoyu Zhang is to pay the applicants Muhammad Imran and Bushra Noor the amount of $5,500.00 on or before 4 January 2024.

Catchwords:

LEASES AND TENANCIES - Residential Tenancies Act 2010 (NSW) - Landlord’s obligation to repair and maintain – Fit for habitation – Compensation

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW)

Civil Liability Act 2002 (NSW)

Residential Tenancies Regulation 2019 (NSW)

Strata Schemes Management Act2015 (NSW)

Cases Cited:

Aceti v Burhan Pty Ltd t/as Garlicks Heating and Cooling [2015] NSWCATAP 55

Austin v Bonney [1999] QCA 8

Briginshaw v Briginshaw (1938) 60 CLR 336

De Soleil v Palmhide P/L [2010] NSWCTTT 464

Hadley v Baxendale [1854] 9 Ex 341

Hall v Hawkins [2015] NSWCATAP 197

Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22

Menashi v Ly [1997] NSWRT 16

Northern Sandblasting Pty Ltd v Harris (1997) 146 ALJR 254

Proudfoot v Hart (1890) 25 QBD 25

Roberts v NSW Aboriginal Housing Office [2017] NSWCATAP 9

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Muhammad Imran and Bushra Noor (Applicants)
Xiaoyu Zhang (Respondent)

Representation:

Muhammad Imran and Bushra Noor - self represented (Applicants)
Dean Stojanovski – Managing Agent (Respondent)

File Number(s):

2023/00384035

Publication restriction:

Nil

REASONS FOR DECISION

Introduction

1. The applicants are the tenants of an apartment in Bankstown. Their application to the Tribunal is dated 20 July 2023.

2. The tenants appeared in person at the hearing. They relied on one bundle of documents which were admitted into evidence, subject to weight and relevance and marked as Exhibit T.

3. Mr Strojanovski appeared on behalf of the landlord/ respondent, pursuant to a Managing Agents Agreement. He relied on one bundle of documents which were admitted into evidence, subject to weight and relevance and marked as Exhibit L. Additionally, and with the leave of the Tribunal, he provided by email a copy of the ingoing condition report.

4. Mr Imran, Ms Noor and Mr Strojanovski gave sworn oral evidence to the Tribunal.

5. The tenants claim that the landlord failed to repair a leak in the bathroom ceiling which was present at the start of the tenancy on 8 December 2022. It is common ground between the parties that the leak emanated from an upstairs bathroom and thus occurred on the common property of the Strata Scheme.

6. The tenants seek compensation of $19,320.00. The claim is quantified as a full rent rebate of $420.00 per week over 10 months. At the hearing the Tribunal explained that its jurisdictional limit is $15,000.00.

7. The breach relied on by the tenants is a continuing breach by the landlord of his obligations, and an extension of time to bring the claim is unnecessary.

8. If I am wrong about that, to the extent an extension of time is needed, I am satisfied that it should be allowed. The issue has always been squarely raised by the tenants with the agent, so the landlord is not prejudiced in being able to defend the claim; the claim has very good prospects of success (as explained below), and the reason for the delay is because the tenants were pursuing the landlord to have the breach remedied: see Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22.

9. I am satisfied that there is a residential tenancy agreement between the parties. The Tribunal has jurisdiction to hear and determine this application.

Relevant Law

Compensation

10. The Tribunal’s power to make an order that requires a party to a residential tenancy agreement to pay the other party compensation is found in sub-section 187(1)(d) of the Residential Tenancies Act 2010 (NSW) (“the Act”).

11. Although section 187 sets out the order-making powers of the Tribunal, those powers do not exist in abstract. They are only enlivened when a substantive provision of the Act is engaged, for example, a breach of the Act.

12. Any damage and loss claimed must be as a result of breach of the Act and must be a reasonably foreseeable consequence of that breach: Hadley v Baxendale [1854] 9 Ex 341.

What is the legal basis of the tenants’ claim?

13. The tenants are not lawyers and were not legally represented. They cannot be expected to have identified with specificity and legal precision all possible bases for their claim.

14. When dealing with an applicant who is not legally represented, the Tribunal has an obligation to look at the complaints of the applicant:

‘and endeavour to determine whether any legal basis, within the Tribunal’s jurisdiction, for the application has been raised. The extent of the obligation in a particular case will depend on the circumstances.’ (Aceti v Burhan Pty Ltd t/as Garlicks Heating and Cooling [2015] NSWCATAP 55 at [30])

15. The Tribunal also has an obligation pursuant to s 38(4) of the Civil and Administrative Tribunal Act 2013 (NSW) to:

‘act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.’

16. The document setting out the reasons the tenants identified for their claim (Ex T, 02), refers to the property’s failure to meet the minimum standards for habitation; the landlord’s failure to repair the leak; and ‘pain emotionally, mentally and physically for the whole family’. Therefore, I have considered their application pursuant to ss 63 and 52, including for non-economic loss arising from the breach(es) due to distress and disappointment.

Landlord’s obligation to provide premises fit for habitation

17. Section 52 of the Act provides relevantly:

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

(1A) Without limiting the circumstances in which residential premises are not fit for habitation, residential premises are not fit for habitation unless the residential premises—

…

(d) have adequate plumbing and drainage,…

18. The word ‘provide’ indicates that:

‘The temporal focus for the performance of the obligation is the date on which possession of premises passes from the landlord to the tenant.’ (Duffey v Tunteveski; Tuntevski v Duffey [2020] NSWCATCD 24 at [65])

19. Therefore, for the landlord to be in breach of section 52, the premises must not have been fit for habitation at the start of the tenancy.

20. The test for ‘habitability’ of residential premises was authoritatively stated in Menashi v Ly [1997] NSWRT 162 drawing on a decision of the Court of Appeal of the United Kingdom in Proudfoot v Hart (1890) 25 QBD 25. In brief, the term refers to a ‘state of repair of the premises [such that] it might be used and dwelt in not only with safety, but with reasonable comfort, by the class of persons by whom and for the sort of purpose for which, they were occupied’ ‘having regard to contemporary standards’. That test was affirmed by the Appeal Panel of this Tribunal in Roberts v NSW Aboriginal Housing Office [2017] NSWCATAP 9 at [117]. The test of un-inhabitability is a difficult one to satisfy and will not be lightly found by the Tribunal: De Soleil v Palmhide P/L [2010] NSWCTTT 464.

Landlord’s obligation to provide and maintain the premises in a reasonable state of repair

21. Section 63 of the Residential Tenancies Act 2010 (NSW) (“the Act”) 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.

(2) …

(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.

22. The term ‘provide’ refers to the state of repair at the commencement of the tenancy, and the word ‘maintain’ refers to the state of the premises during the tenancy: Austin v Bonney [1999] QCA 8.

23. The landlord’s obligation to repair arises after the landlord has been put on notice of the need to repair. Once notice is received by the landlord, a breach of section 63 will only occur if the landlord fails to carry out any necessary repairs within a reasonable time: Northern Sandblasting Pty Ltd v Harris (1997) 146 ALJR 254.

24. In the case of repairs required to common property within strata premises, a landlord’s failure to act with reasonable diligence in following up repairs with the owners of the strata plan can amount to a breach of the landlord’s obligations.

Proof

25. The tenants bear the onus of proving the elements of their claim to the civil standard of proof: that is, to the comfortable satisfaction of the Tribunal on the balance of probabilities: Briginshaw v Briginshaw (1938) 60 CLR 336.

26. Specifically in this case the tenants must prove that:

1. There was a relevant breach by the landlord of an obligation owed to the tenants under the residential tenancy agreement; and

2. They have suffered reasonably foreseeable damage and loss as a consequence of that breach for which they are entitled to be compensated.

Relevance of the ingoing condition report

27. Section 29 of the Act provides that a condition report relating to the condition of the residential premises must be completed by the landlord in the prescribed form and provided to the tenant.

28. Section 30(1) of the Act contains a rebuttable evidentiary presumption concerning condition reports. This follows from the inclusion of the qualifying words “in the absence of evidence to the contrary” in the subsection.

29. Section 30(2)(b) provides that this evidentiary presumption does not apply to any statement in the report about which the tenant makes a written dissenting comment on the copy of the report completed by the tenant and retained by the landlord.

30. Section 30 does not render a condition report completed by only one party and not signed by the other party inadmissible, or unable to be relied upon, to establish the condition of the premises at the relevant time: Hall v Hawkins [2015] NSWCATAP 197 at [60]-[64].

31. Section 30(1) does not provide a basis for rejecting or ignoring other evidence as to the state of the premises at the relevant time, where the evidence happens not to be contained in a condition report signed by both the landlord and the tenant.

What was the condition of the ceiling at the start of the tenancy?

32. The tenancy commenced on 8 December 2022. The tenants, together with their 3 children, moved into the premises on that day.

33. The premises include 2 bedrooms, a loungeroom, dining room, one bathroom with toilet, a laundry, separate second toilet and balcony.

34. Mr Stojanovski contended that the leak was not present at the start of the tenancy. He relied on the ingoing condition report dated 7 December 2022 which records the bathroom as undamaged, and the ceiling freshly painted at the start of the tenancy.

35. The report was prepared by the landlord’s agent, Hayden Tu. It is not signed by the tenants. There are no comments by the tenants recorded.

36. A photograph of the bathroom attached to the report includes only a corner of the ceiling.

37. The tenants gave evidence that on the day they moved in:

1. There was damage to the ceiling of the bathroom. They refer to photographs on pages 6 and 7 of their documents - undated - which show prominent paint flaking to the ceiling and what appears to be a leak and mould stain. The tenants gave evidence the photographs are dated the day they moved in, or shortly after;

2. The leak was located above the shower recess;

3. The liquid leaking was yellow and had a bad smell; and

4. They notified Hayden Tu by telephone, stating:

‘You should not have rented this out. There is a leakage.’

Findings – sections 52 and 63

38. Notwithstanding that the ingoing report does not record any ceiling damage, on the balance of the evidence I find that, in breach of the landlord’s obligations under s 63, a leak to the bathroom ceiling was present at the start of the tenancy:

1. Based on the tenants’ sworn evidence, I am satisfied that the photographs of the damage were taken towards the start of the tenancy, if not on the first day;

2. The photograph provided by the landlord does not assist because it does not depict the part of the ceiling where the leak occurred; and

3. There was no evidence before the Tribunal from Hayden Tu to challenge the tenants’ account of the conversation. I therefore accept the tenants’ sworn evidence that they notified the landlord of the leak at the start of the tenancy i.e. on or about 8 December 2022.

39. However, I cannot be satisfied on the evidence that the leak was so serious that it rendered the premises uninhabitable at the start of the tenancy. The tenants were able to use the shower at the start of the tenancy and continued to do so until 28 February 2023 when the leak worsened. There is no persuasive evidence that the leak posed a health or safety risk to the inhabitants at the start of the tenancy.

Did the landlord fail to maintain the premises in a reasonable state of repair?

40. The following chronology either reflects factual matters which are not in dispute or documentary material received in evidence. Save to the extent that matters are said to be in dispute, the chronology represents my findings of fact. Any grammatical, punctuation or spelling errors in the email extracts appear in the originals.

41. On 20 December 2022, about 2 weeks after the landlord, via Mr Tu, was put on notice of the leak, the tenants emailed the agent:

‘As we spoke on the phone regarding few issues we observed in the first week after we moved in need to be resolved Such as toilet water dripping down the upper floor right on the shower area which is certainly a dirty smelly water has stopped us to use the shower area … Vedio and pictures attached. Your earliest response in this regard would be highly appreciated’: Ex T, 18

42. I accept the tenants’ uncontested evidence that the leak was a significant volume and that the liquid smelt unpleasant and appeared dirty.

43. The first occasion a plumber attended to inspect the leak was on 28 February 2023. He cut a hole in the ceiling to access the leak (Ex T, 8).

44. On 1 March 2023 the tenants emailed Mr Tu:

‘I have previously requested several times to resolve the washroom roof leakage issue, finally, after waiting about three months two persons came yesterday to the unit to investigate the leakage, Sadly they confirmed our doubt that this leakage is from the toilet right above.

They also told us that they have nothing to do with this issue as it is a plumbing issue

I would like to bring your kind attention that Imagines taking shower right under the toilet water pouring from above for three months

Resolve the issue immediately my wife and my children are very disappointed as a real estate agent it is your duty of care toward your client’ (Ex T, 19)

45. On 2 March 2023 Mr Tu replied:

‘Thanks Imran and will pass on to the strata regarding with the bathroom ceiling leakage.’ (Ex T, 20)

46. From 28 February 2023 the leak increased, and the tenants stopped using the shower altogether. Their family of 5 washed and bathed using the small tub in the laundry.

47. On 29 March 2023 the tenants again emailed the agent:

‘I would like to remind about toilet roof leaking issue , please resolve as soon as possible , I have requested several time.’ (Ex T, 21)

48. On 29 March 2023 Mr Tu replied that he would send a follow up email to strata.

49. On 30 March 2023, apparently in response to an email from the agent which does not appear in evidence, Ms Brite on behalf of the strata manager wrote to Mr Tu:

‘Thanks for your email. We have received the report from the plumber which indicated the issue is shared between strata and the owner.’ (Ex L, 47)

50. On 9 May 2023 the tenants emailed the agent:

‘Can you share your correspondence with Stratrra since we raised the toilet leakage issue with you, that was the day we moved in … this toilet is not usable anymore because too much water is dripping from the roof it’s a serious roof leak that needs urgent repair …’ (Ex L, 48)

51. On 9 May 2023 Mr Tu replied:

‘Thanks Imran and will pass on to the strata.’ (Ex L, 48)

52. On 9 May Mr Tu emailed Ms Brite, providing the tenants’ contact details:

‘Would you follow up regarding the bathroom ceiling that’s still leaking water when it’s heavy rain so there’s still a hole which needs to be covered and needs to be fixed ASAP. See photo attached above.’ (Ex L, 48)

53. On 10 May 2023 Ms Brite replied to Mr Tu:

‘I’ve just followed up with the owner above, they need to complete a large repair. I have sent them the quote yesterday. I will follow up in a few days with them.’ (Ex L, 46)

54. On 11 May 2023 Mr Tu replied:

‘Thanks Kaylene and would you please provide an update once the quotes have been approved.’ (Ex L, 46)

55. On 23 May 2023 the tenants emailed Mr Tu:

‘I have requested in my previous email for your correspondence to fix the toilet roof leakage with stattra, please send it to me at your earliest convenience.’ (Ex L, 44)

56. On 23 May 2023 at 10.36 am Mr Tu replied:

‘Thanks Imran and we have followed up with the strata so they need to complete a large repair. They have sent them the quote and we will let you know once we get an update.’ (Ex L, 43)

57. On 23 May 2023 at 11.24 am the tenants emailed Mr Tu:

‘This is the time to know the deadline, my family are the ones who are suffering but still showing huge patience and it is so frustrating to use the toilet pouring dirty water right on your head, my kids are so tense whenever they need to use the toilet, and I have already mentioned in one of my emails imagine yourself and your kids to feel the real description. As a tenant, this is the worst ever experience. Resolve it as soon as possible as we have been waiting for months.’ (Ex L, 43)

58. On 23 May 2023 at 12.21 pm Mr Tu replied:

‘Thanks Imran for your email and it’s from the other unit above which the strata it’s still working with quotes to rectify the issue asap.’ (Ex L, 43)

59. Sometime in May 2023 the landlord attended the premises in person and increased the size of the hole to investigate the leak. This is depicted on page 9, Ex T. A large area of the corner of the ceiling was cut out, exposing a drain/ pipe. Significant mould is on the ceiling.

60. On 6 June 2023 the tenants emailed Mr Tu:

‘please update about when the toilet will be fixed.’ (Ex L, 42)

61. Mr Tu replied also on 6 June 2023:

‘Thanks Imran so what happened to the toilet …’ (Ex L, 42)

62. The next email in evidence is dated 20 June 2023 from the tenants to the agent:

‘Hi, plz update about toilet repair it is getting worse it is very hard to live in this property with too much water leak’ (Ex L, 41)

63. Mr Tu replied a short time later on 20 June 2023:

‘Thanks Muhammad and the strata is waiting for a quote to fix the issues.’ (Ex L, 41)

64. On 14 July 2023 Mr Tu emailed Ms Brites and the landlord, again providing the tenants’ contact details:

‘We just letting you know that the tenant of unit 4 come to our office today and reported to us that the owner have send out their own tradesman to fix the bathroom ceiling leaks and open the gyprock but they didn’t cover the plaster after it’s been fix as it’s still leaking water when it’s raining so they cannot use the bathroom and needs to be fix urgently. See video attached …’ (Ex L, 40)

65. A few minutes later Mr Tu sent a follow up email:

‘Please find attached video above which it was happened 10 days ago that the owner have sent out their tradesman to check the bathroom ceiling and didn’t cover the hole instead they cut another hole to check the leaks so needs to be fix urgently.’ (Ex L, 39)

66. On 17 July 2023 Ms Brites emailed Mr Tu:

‘I have left another message at unit 9 this morning which is where the leak is coming from. Your tenant called our office multiples times last week and we would appreciate if we can liase (sic) directly with you as their agent and you can update them. We are waiting on their approval to gain access into their unit as unit 9 must share the cost of repair with strata. I have left multiple messages for them but they are not responding to my calls. If they do not return my call by COB today then I will seek instructions from the committee to apply to NCAT for access order.’ (Ex L, 38)

67. Also on 17 July 2023, the tenants requested an update from the agent. In response, Mr Tu forwarded the tenants the above email from Ms Brites dated 17 July 2023.

68. Further email correspondence indicates that the repairs were scheduled for 20 July 2023. A plumber attended on or around that date, but his attempt to repair the leak was unsuccessful.

69. The plumber left the shower recess and bathroom with significant debris, plaster and dirt (Ex T, 10). The tenants gave evidence that they understood the plumber would soon return to continue the work.

70. On 25 July 2023 the tenants emailed the agent:

‘Can you please follow up with the plumber? He has to come at 7 am today, work is unfinished, the place is dusty, and concrete is everywhere. The picture and video are attached. During this maintenance work, it is so unhygienic for everyone living in the unit. My daughter is sick because of this and could not go to school …’ (Ex T, 38).

71. On 25 July 2023 Mr Tu emailed Ms Brite:

‘the tenant of unit 4 reported to us this morning that the bathroom ceiling gyprock needs to be cover and you have the plumber come at 7am this morning to fix the leakage at the ceiling so it’s unfinished and there’s dust and concrete is everywhere in the shower so needs to be fix urgently. See videos … The daughter is sick because it’s unhygienic in the bathroom and couldn’t go to school as she got dust allergy, illness and cough with 100.2 fever. Would you please let the plumber know to come back and clean up after they finish the job.’ (Ex L, 25)

72. On 26 July 2023 Ms Brite replied:

‘I have spoken to the owner of unit 9 about the mess and she will advise the plumbers to return to clean it.’ (Ex L, 23)

73. Also on 26 July 2023 the tenants emailed the agent:

‘Like many other days, we started our day by requesting to resolve the toilet issue, As I mentioned yesterday in my e-mail my daughter is sick because of dust and concrete scattered all over the unit, she is really not feeling well because of this mess and could not go to school today as well this concrete and dust should be removed immediately, please find the plumber and ask him to finish the job today At least ask the owner to visit his/her property to see what is going on here plumber left the work in the middle we are so much stressed because of this non-serious behaviour, if you really wanna help us to get out of this situation follow up.’ (Ex T, 41)

74. Mr Tu replied shortly after:

‘Thanks Muhammad and would you be able to knock on the door of the owner in no. 9 as per strata’s request to explain the situation.’ (Ex T, 42)

75. I accept the tenants’ evidence that the plumber did not return. After a month, they cleaned up the debris and shut the door.

76. On 22 August 2023 Mr Tu emailed Ms Brite:

‘Would you please give us a follow up update when the bathroom ceiling needs to be cover as this it’s been ongoing till now and it’s getting worse so the tenants cannot use the bathroom and shower as it’s unhealthy with their kids so needs to be fix urgently before the hearing. Could you please get in contact with the owner of unit 9 and tradesman to solve the issues and went below to no. 4?’ (Ex L, 25)

77. On 22 August 2023 Ms Brite replied:

‘Unit 9 is overseas and no water is being used at the property at all. I also have spoken to the tenant of number 4 today. I am having Bert contact them and attend in the next day or so to investigate. The work was completed in unit 9 was extensive and included water proofing. Once I have the report from Bert I will arrange access into number 9 and get to the bottom of the issue.’ (Ex L, 21) [errors in original]

78. On 23 August 2023 the tenants again emailed the agent requesting he follow up the ‘dirty water’ leaking from the upstairs toilet (Ex T, 43).

79. On 23 August 2023 Mr Tu replied and updated the tenants about his correspondence with strata the day before.

80. On 30 August 2023 the tenants emailed the agent:

‘Please follow up for toilet roof leak no one came back to fix it please ask plumber to finish his job so we could use toilet.’ (Ex T, 45)

81. On 31 August 2023 Mr Tu emailed Ms Brite:

‘Would you please give us a follow up when the bathroom ceiling will be fix so the tenants can use the bathroom and would you please inform the plumber to have the issues to be fix urgently.’ (Ex L, 19) [errors in original]

82. Further email correspondence between the parties indicates that a plumber eventually attended on or about 18 September 2023.

83. The leak was repaired sometime at the end of September 2023.

84. However, as at the date of the final hearing, the hole in the ceiling had not been repaired. The tenants have covered it with paper/ cardboard.

Findings

85. For the following reasons and based on the chronology outlined above, I find that the landlord failed to act with reasonable diligence in following up repairs with the owners of the strata plan:

1. It took nearly 3 months for a plumber to investigate the leak after the tenants notified the landlord on or about 8 December 2022, and again on 20 December 2022. There is no explanation from the landlord for this significant delay, nor any evidence of the landlord’s efforts to liaise with strata to expedite a repair;

2. The leak remained unrepaired and a further month passed. The agent then emailed an enquiry to the strata managers, but only at the prompting of the tenants;

3. A further 10 days passed. On 9 May 2023, again at the prompting of the tenants, the agent followed up with strata. By this time the landlord was on notice that the leak was so serious that the tenants could not use the bathroom;

4. Despite strata informing the agent on 10 May that it would follow up about repair quotes ‘in a few days’, a further 12 days elapsed with no apparent progress. The agent did not query the delay with strata. Once again, it was left to the tenants to follow up on 23 May 2023. There is no evidence that the agent queried the progress of the quotations with strata at that point, even after the tenants again expressed their distress and frustration. The agent’s responses to the tenants might fairly be described as ‘fobbing off’;

5. The tenant continued to query progress during June 2023. There was no apparent action from the landlord’s agent, apart from a perfunctory, ‘Thanks … strata is waiting for a quote …’

6. It was not until mid-July that the agent again enquired with strata, but only after the tenant had personally attended the agency to follow up;

7. After the unsuccessful repair attempt on 25 July 2023, significant debris, plaster and dirt were left in the bathroom. The landlord’s agent contacted strata immediately, reporting the situation as ‘urgent’ and causing sickness to the tenants’ child. The agent’s request that the tenants knock on the door of the upstairs unit to explain the problem was unreasonable and a dereliction of the landlord’s own obligations. Despite the agent’s knowledge of the urgency of the situation, there was no further follow up;

8. Nearly another month passed before the landlord’s agent again enquired with strata about the progress of the repairs;

9. A further week passed before the landlord’s agent followed up with strata, after prompting by the tenants;

10. Another month elapsed before the leak was finally repaired, although the hole in the ceiling remains.

86. The landlord has a contractual obligation to the tenants to maintain the premises in a reasonable state of repair. That is no less the case because the landlord has no direct ability to carry out repairs to common property in the Strata Scheme.

87. The landlord, as Lot Owner, is a member of the Owners Corporation that its responsible for maintaining the common property of the Strata Scheme in a reasonable state of repair. He has remedies available to him against the Owners Corporation in relation to the state of disrepair of the common property under the Strata Schemes Management Act 2015 (NSW).

88. The delays in repairing the leak were very significant. The family of 5 were left without the proper use of the only shower for around 7 months. Yet the landlord did nothing to avail himself of his rights against the Owners Corporation. He did not complain to the Owners Corporation or register any concern about the delay, or the management of the repair by the strata manager, nor make an appropriate application to this Tribunal. His inaction in the circumstances was entirely unreasonable.

89. For all these reasons I find that in relation to the leak, the landlord breached his obligation to maintain the premises in a reasonable state of repair.

90. The tenants’ application also refers to repairs needed to the door of the electricity panel; the lock of a sliding door; and torn fly screens. However, there was no clear evidence about when the landlord was notified of these repairs. Therefore I cannot find that the landlord has delayed unreasonably in attending to these repairs. I am not satisfied the landlord breached his obligations in relation to these particular repairs.

Are the tenants entitled to compensation?

91. To the extent that the tenants may be claiming that the landlord’s breach has caused themselves or their family physical or mental illness, that claim must be dismissed. This is because a claim for non-economic loss such as pain and suffering cannot be maintained due to the limitation of section 16 of the Civil Liability Act 2002 (NSW): see also Roberts v NSW Aboriginal Housing Office [2017] NSWCATAP 9 at [78]-[80].

92. Nevertheless, I am satisfied that the tenants have suffered other reasonably foreseeable damage and loss as a consequence of the landlord’s breach for which they are entitled to be compensated.

93. For a period of nearly 7 months, the tenants effectively lost the use of the only shower in the premises. The leak of dirty, smelly liquid was directly above the shower recess. Their only other means of bathing was the laundry tub. The significant inconvenience and stress this caused to a family with young children is not difficult to appreciate. It is clearly expressed by the tenants themselves in the emails in evidence.

94. The large hole in the bathroom ceiling was unsightly. It exposed the cavity and drain beneath the upper unit. I accept the tenants’ uncontested evidence that at times they saw cockroaches emerging from the hole. There was mould on the ceiling near the leak. Understandably, the children did not like to use the toilet in that bathroom. The only other toilet is in (or adjacent to) the laundry.

95. The distress was compounded for about a month when the plumber left concrete, debris and dust in the bathroom. The tenants incurred the inconvenience of cleaning it themselves.

96. The tenants worried very much about the health risks to themselves and their young family posed by the leak and dust.

97. They also experienced frustration and upset due to the landlord’s apparent disinterest in their concerns. They were required to constantly follow up about progress. It is not an exaggeration to say that the tenants were reduced to begging the landlord’s agent for the repairs. Very often they were ‘fobbed off’ in response. Their emails demonstrate their distress and sense of powerlessness.

98. Such distress, inconvenience and disappointment are not consequential upon physical injury or psychiatric illness and compensation for such loss is therefore not captured by the restrictions in the Civil Liability Act 2002.

99. I am satisfied that this is damage which flows naturally from the landlord’s breach of s 63. It is a form of non-economic loss for which the tenants are entitled to be compensated.

100. I do not, however, consider that the damage suffered by the tenants is so serious as to justify an amount of compensation to the jurisdictional maximum of $15,000.00, as the tenants contend.

101. The Tribunal concludes that the tenants are entitled to an order under sub-section 187(1)(d) of the Act that will require the landlord to pay them compensation in the amount of $5,500.00.

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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: 05 August 2024