Kolodziej v Ali & Anor (Appeal)
[2021] ACAT 123
•16 December 2021
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
KOLODZIEJ v ALI & ANOR (Appeal) [2021] ACAT 123
AA 41/2020 (RT 547/2020)
Catchwords: APPEAL – residential tenancies – lessor’s obligations to make repairs per clause 55 of standard residential tenancy terms – a residential unit – faulty intercom – leaking window – whether lessor’s compliance with notification to the owners corporation about the need for repairs, per clause 58 of standard residential tenancy terms, excuses lessor’s obligation to tenant to make repairs – relevant principles on appeal when considering whether quantum awarded at first instance was excessive – application for appeal dismissed
Legislation cited: Residential Tenancies Act 1997 standard terms 55, 56, 57, 58, 60
Residential Tenancies Act 2010 (NSW) s 62
Unit Titles (Management) Act 2011 ss 125, 126
Cases cited:Gorman v Meriton Apartments [2007] NSWCTTT 628
Hartigan v Commissioner for Social Housing in the ACT [2017] ACTSC 100
House v The King (1936) 55 CLR 499
Kolodzeij v Ali [2021] ACAT 114
Lee v Fuzessery [2010] NSWCTTT 205
McMillan & Anor v Owners Corporation-Units Plan No 79 [2019] ACAT 86
Reis v Helson [2001] NSWSC 486
List of
Texts/Papers cited: Allan Anforth, Peter Christensen and Christopher Adkins, Residential Tenancies Law and Practice New South Wales, (The Federation Press, 7th ed, 2017)
Tribunal:Presidential Member G McCarthy
Date of Orders: 16 December 2021
Date of Reasons for Decision: 16 December 2021
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AA 41/2020
BETWEEN:
ILKA KOLODZIEJ
Appellant
AND:
SHERIF ALI ABDELAZIZ ALI
Respondent
AND:
THE OWNERS CORPORATION OF UNITS PLAN No 3889
Party Joined
APPEAL TRIBUNAL: Presidential Member G McCarthy
DATE:16 December 2021
ORDER
The Tribunal orders that:
Application for appeal is dismissed.
………………………………..
Presidential Member G McCarthy
REASONS FOR DECISION
The appellant is the owner of a residential unit in a residential apartment complex in Belconnen, ACT. By means of a residential tenancy agreement dated 2 May 2017, the appellant/lessor leased her unit to the respondent/tenant for $450 per week. The lease commenced on 19 May 2017. The respondent vacated the premises on 13 July 2020.
In the course of the tenancy, the respondent informed the appellant’s managing agent of four alleged defects that he wished to be corrected. By application to the tribunal dated 5 August 2020, the respondent sought compensation for the appellant’s failure to correct the defects.
At the original hearing, the appellant was represented by Ms Chesher, who I understood was an employee of the appellant’s managing agent. The respondent presented his case in person.
The party joined was not a party in the original proceeding and took no part in it.
On 26 October 2020, the original tribunal dismissed the respondent’s claim in relation to two of the defects on which the respondent relied and awarded compensation in relation to the other two.
The appellant appealed against the award of compensation in relation to both defects for which the respondent had been awarded compensation. Mr Stefaniak, a legal practitioner, appeared for the appellant. The respondent appeared for himself.
In an interim decision in this proceeding, I addressed several procedural questions regarding the conduct of the appeal.[1] In that decision, I also determined that (on the appeal) I had no jurisdiction to adjudicate any claim that the appellant might have against the party joined and that no order attributing liability could be made against it. Accordingly, I noted that the party joined might seek leave to be excused from taking any further part in the appeal. The party joined sought that leave, and I granted it.
[1] Kolodzeij v Ali [2021] ACAT 114
On the appeal, Mr Stefaniak contended that the original tribunal erred in two respects. First, by finding that the lessor was liable to pay compensation for the defects at all. Second, on the grounds that the compensation awarded, in each case, was excessive. I deal with each defect in turn.
Faulty intercom - submissions on liability
The appellant’s unit was equipped with an intercom that enabled the respondent to talk with visitors standing outside who wished to access the building. By pushing buttons on the intercom, the respondent could also enable a visitor to access the visitor car park, access the building and use the lift to reach his floor in the building. At the original hearing, the parties agreed that the intercom in the unit did not work.
At the hearing before the original tribunal, there was no dispute that the owners corporation had a responsibility to repair the intercom. Apparently, there were many units in the building which had a similarly faulty intercom. Ms Chesher said that the intercom “was not working in the entire complex”.[2] There was also no dispute that the appellant’s managing agent (on behalf of the appellant) had repeatedly notified the strata manager about the fault and requested it be fixed. The strata manager managed the complex on behalf of the owners corporation.
[2] Transcript of proceedings 26 October 2020, page 10, lines 43-44
Ms Chesher relied on that fact to contend that the appellant was not liable to the respondent. She put it this way:
I understand the inconvenience and everything. Our point of view is we’ve - each time it was reported we did everything in our power, so to speak, to report it to the appropriate people and get it sorted. So, I feel like the owner has done everything they can to get it fixed. It’s just the people fixing it on their behalf haven’t done it in a very timely manner.
So, I don’t think the owner’s responsible legally at all. No.
…
I think they’ve done everything that they could have.[3]
[3] Transcript of proceedings 26 October 2020, page 13, lines 16-27
Ms Chesher’s submission raised the question whether clause 58 of the standard residential tenancy terms (the SRTTs), which applied to the agreement between the appellant and the respondent, was relevant. It provides:
58 If the premises are a unit under the Unit Titles Act 2001, and the tenant’s use and enjoyment of the premises reasonably requires repairs to the common property, the lessor must take all steps necessary to require the owners corporation to make the repairs as quickly as possible.
The original tribunal found that a lessor’s compliance with clause 58, or the circumstance that an owners corporation has an obligation to rectify a fault, does not provide the lessor with a defence to a tenant’s claim for loss of amenity. The original tribunal said:
[I]t’s not a defence to the tenant’s claims to say that it is the body corporate’s responsibility, or the owners corporation responsibility or, indeed, the builders responsibility. What clause 58 is doing is putting another obligation on the lessor that if it is their responsibility then they [the owners corporation] have to be notified.[4]
[4] Transcript of proceedings 26 October 2020, page 41, lines 6-10
The original tribunal referred to a decision of the NSW Supreme Court, Reis v Helson,[5] in support.
[5] [2001] NSWSC 486
The original tribunal ruled that clause 58 needs to be read “with the rest of the clauses in the standard agreement”, including clause 55 which states the lessor’s obligation to make repairs.
Mr Stefaniak submitted that the original tribunal erred in finding that the appellant is or could be liable to the respondent where there was “absolutely nothing” that the appellant could have done to rectify the fault. Mr Stefaniak submitted that it would be “grossly unfair” that the appellant should be “lumbered with someone else’s problem” and that the appellant should be “excused” from the obligation to repair the intercom because the ability to repair it was out of her control and was in the control of the owners corporation.
Mr Stefaniak submitted that when construing the Court’s decision in Reis v Helson, I should also read a later decision of the (then) Consumer, Trader and Tenancy Tribunal of New South Wales (the NSWCTTT), Lee v Fuzessery, referred to in a textbook, Residential Tenancies Law and Practice New South Wales,[6] that (he said) gave a different viewpoint. Mr Stefaniak did not elaborate on the difference.
[6] Allan Anforth, Peter Christensen and Christopher Adkins, Residential Tenancies Law and Practice New South Wales, (The Federation Press, 7th ed, 2017)
Mr Stefaniak also relied on a decision of the Supreme Court, Hartigan v Commissioner for Social Housing in the ACT,[7] in which the Court found that the Commissioner, as the lessor of rented premises, was not liable for injuries suffered by a child that was bitten by a dog belonging to the tenant. Mr Stefaniak submitted that, by analogy, if the Commissioner was not liable to the tenant, so the appellant should not be liable to the respondent. Mr Stefaniak submitted “it would seem to me that Housing was in an even better position to prevent the incident [the dog biting the child] than my client was to repair the defects”.[8]
[7] [2017] ACTSC 100
[8] Email from Mr Stefaniak dated 14 December 2021, 7:47am
Mr Stefaniak submitted that clause 55 needed to be read in the context of clause 58. He submitted that an inference should be drawn from clause 58 that clause 55 does not include repairs that are beyond a lessor’s control.
Mr Stefaniak submitted that section 125 of the Unit Titles (Management) Act 2011 (the UTM Act) entitled the respondent to sue the owners corporation in relation to the faulty intercom, and that is what he should have done.
In support, Mr Stefaniak drew on the definition of ‘urgent repairs’ in section 62 of the Residential Tenancies Act 2010 (NSW) (the RT Act (NSW)), which defines ‘urgent repairs’ to mean any work needed to repair any one or more of the failings in rented premises listed in section 62 but not “work needed to repair premises that are owned by a person other than the landlord or a person having superior title (such as a head landlord) to the landlord”.
Faulty intercom - consideration of liability
A lessor’s obligations to make repairs to rented premises are set out in clauses 55-57 of the SRTTs, which provide:
Lessor to make repairs
55(1) The lessor must maintain the premises in a reasonable state of repair having regard to their condition at the commencement of the tenancy agreement.
(2)The tenant must notify the lessor of any need for repairs.
(3)This section does not require the tenant to notify the lessor about anything that an ordinary tenant would reasonably be expected to do, for example, changing a light globe or a fuse.
56 The lessor is not obliged to repair damage caused by the negligence or wilful act of the tenant.
57 Subject to clause 55, the lessor must make repairs, other than urgent repairs, within 4 weeks of being notified of the need for the repairs (unless otherwise agreed).
There was no dispute that the intercom formed part of the ‘premises’, even if the owners corporation was responsible for ensuring it was in working order. It follows that the appellant’s obligations under clause 55(1) applied in relation to the intercom.
I agree with the original tribunal’s finding that the appellant’s obligations under clause 58, which concerns repairs to the common property, did not absolve or excuse the lessor from her separate obligation to maintain the premises under clause 55. Two factors drew me to that conclusion.
First, nothing in clause 55 suggests that such an exclusion from the liability to repair should be inferred. Clause 56, which expressly provides for an exclusion, evidences that the legislature turned its mind to circumstances in which a lessor should not be liable to make repairs. If the legislature had intended clause 55 also not to apply where the ability to carry out the repairs is beyond the lessor’s control, it would have said so. It did not.
Second, Mr Stefaniak’s statement that there was “absolutely nothing” that the appellant could have done to carry out the necessary repairs is overstated. I accept, of course, that she could not herself have repaired the intercom but she could pursue others to do so, as she did, and in this case the owners corporation. I see no difference in principle between a unit in an apartment complex and a freestanding house. If there are repairs to be done to a rented house, it is no defence for the lessor to say that they, themselves, cannot carry out the necessary repairs and that they have done all they can by requesting a tradesperson to carry out the work. Put another way, the appellant’s difficulties in causing the repairs to be done do not excuse her contractual obligations to the respondent under clause 55 to do them.
Having read the many emails that were in evidence, I am well satisfied that the appellant’s agent, and the appellant personally, were pressing the owners corporation (via the strata manager) to repair the intercom. I expect the delay in repairing the intercom was causing great frustration for all unit owners and unit occupiers in the complex. Their efforts are to be commended, but they did not change the fact that the intercom in the unit did not work and that the appellant was in breach of clause 55 as a result.
I reject the proposition that compliance with clause 58 excused the appellant from her obligation to maintain the unit in a reasonable state of repair under clause 55. In my view, they are entirely separate obligations.
In my view, section 62 of the RT Act (NSW) was not relevant. It concerns a definition of ‘urgent repairs’, which is a separate issue. Also, the exclusion in section 62 upon which Mr Stefaniak relied was in relation to “premises that are owned by a person other than the landlord or a person having superior title (such as a head landlord) to the landlord”. In other words, it responds to the arrangement of a head tenant and a sublessee. That has no application in this case. Last, the exclusion does not exist in the equivalent clause 60 of the SRRTs.
At Mr Stefaniak’s request, I read the NSWCTTT’s decision in Lee v Fuzessery.[9] Mr Stefaniak did not take me to any passage in the decision or explain why it was relevant. As best I can ascertain, the decision supports the conclusion reached by the original tribunal in this case.
[9] [2010] NSWCTTT 205
In Lee v Fuzessery, the NSWCTTT considered a tenant’s claim for compensation arising from several water leaks. The NSWCTTT noted the landlord’s case was that the managing agent had promptly notified strata managing agent, who controlled the areas where the leaking arose, and that the landlord could not be responsible for the delay or the fact that the initial repairs were insufficient. The NSWCTTT rejected the landlord’s defence and awarded compensation. It ruled:
It is the responsibility of the landlord to provide the tenant with properly habitable premises ... however the landlord relied only on tardy inspections and repairs arranged by the strata managing agent. As the strata managing agent was, even by that time, clearly not acting diligently, the landlord had a duty to take steps to compel those repairs …. None of those steps were taken.
In my view, Hartigan v Commissioner for Social Housing in the ACT is not relevant. That case concerned a claim in tort, namely negligence, and whether the Commissioner owed a duty of care to the bitten child. The Court ruled it did not. This is a claim in contract, namely a claim for compensation arising from the appellant’s breach of clause 55 of the SRRTs. Principles of liability in negligence are not relevant.
In my view, Mr Stefaniak’s reliance on section 125 of the UTM Act is misconceived. That section is stated to apply “to a dispute between 2 or more of the following…”, after which are several named entities. One of those entities is an “an owner or occupier of a unit in the units plan”, which I accept includes the respondent. If there is such a dispute between the owners corporation and one of the named entities, either party to the dispute may apply to the tribunal for an order “in relation to the other party if the application relates to the dispute”.[10]
[10] UTM Act section 126
The difficulty with Mr Stefaniak’s submission is that there was no dispute between the owners corporation and the respondent regarding repairs to the intercom. The respondent, appropriately, engaged only with the appellant’s property manager who managed the tenancy between him and the appellant. I struggle with the idea that the respondent is somehow at fault by not entering into a dispute with the owners corporation or the strata manager who managed the owners corporation’s responsibilities on its behalf. I accept that a tenant, faced with difficulties regarding their rented premises, should first take their difficulties to the lessor or, as in this case, the appellant’s property manager as he did.
In my view, section 125 of the UTM Act also illustrates that there was more that the appellant could have done to get the intercom repaired. She too was an entity named in section 125. She was clearly in dispute with the owners corporation regarding their ongoing failure to repair the intercom, and so could have applied to the tribunal for an order in relation to the dispute. She did not do so.
For these reasons, I can see no error in the original tribunal’s decision that the appellant breached clause 55 of the SRRTs, and that compensation should therefore be awarded.
Faulty intercom - submissions on quantum
The respondent claimed 20 percent of his rent as compensation for the period when the intercom was not working. The Tribunal accepted this claim to be “reasonable”, given the importance of a working intercom. The original tribunal regarded it as an urgent repair because it “inhibits his use of the premises because of issues with entry to the premises”.[11] Where the amended claim was from 1 February 2019 to 8 July 2020, a period of 524 days, and 20 percent of the rent was $12.86 per day, the original tribunal calculated compensation payable of $6,738.64.
[11] Transcript of proceedings 26 October 2020, page 42, lines 26-28
Mr Stefaniak submitted that the original tribunal’s award was excessive. He relied on many factors which I deal with in turn.
First, he relied on the fact that the respondent initially claimed compensation of “between 8 to 10 weeks of rent value” by way of compensation in response to his entire claim. Ten weeks rent would have been $4,500 in total. Mr Stefaniak said that a friend of the respondent who also lived in the complex reached a private settlement with his managing agent of six weeks rent in response to the faulty intercom. Mr Stefaniak said that the respondent spoke with Legal Aid ACT before making his original claim for 8 to 10 weeks. Mr Stefaniak submitted that these are indicators of what reasonable compensation should have been.
Second, Mr Stefaniak noted that the respondent originally claimed compensation for the period 1 September 2019 to 8 July 2020, a period of 312 days. However, midway through the hearing,[12] the respondent stated that he had made “a typo error” in his claim and that the commencement date should be 1 February 2019, not 1 September 2019. He sought to amend his claim. The original tribunal accepted the “late correction”. Mr Stefaniak submitted that the original tribunal was wrong to do so, and that the respondent should not have been permitted to change his claim at that late stage.
[12] Transcript of proceedings 26 October 2020, page 34, lines 20-36
Third, Mr Stefaniak submitted that the original tribunal erred by “just accepting” the respondent’s claim without ‘testing’ the reasonableness of the claim in terms of the kinds and frequency of the alleged inconveniences that the respondent suffered as a consequence of the faulty intercom. Mr Stefaniak took me to pages 10-16 of the transcript of the original hearing where the original tribunal discussed the claim with the respondent but never challenged him about it.
Mr Stefaniak relied on a decision of the NSWCTTT, Gorman v Meriton Apartments,[13] in which a tenant was awarded $100 by way of compensation for an intercom that was not working for 21 days. Mr Stefaniak pointed out that the award was approximately $5 per day. He submitted that that $5 per day, not $12 per day, is more commensurate with reasonable compensation.
Faulty intercom - consideration on quantum
[13] [2007] NSWCTTT 628
The original tribunal found the faulty intercom to be a “significant loss of amenity”. She referred to his evidence about his visitors’ inability to use the visitor parking; that he needed to go down to the foyer each time he had a visitor to let them in; and that he needed to go to the post office to collect parcels that the postal worker had been unable to deliver to his unit because of the faulty intercom. The original tribunal found the respondent’s claim of 20 percent of his rent, by way of compensation, to be “reasonable”.
An assessment of compensation for inconvenience necessarily involves the exercise of discretion. Views will invariably differ between different tribunal members as to what amount of compensation is or would have been appropriate. On appeal, that discretion must be respected. The principles regarding an appeal from the exercise of discretion are well-settled. In House v The King the High Court said:
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion.[14]
[14] House v The King (1936) 55 CLR 499, 504-505 (per Dixon, Evatt and McTiernan JJ)
I can accept that the amount awarded was, perhaps, generous, but I do not accept that it was beyond what was reasonable in the circumstances. None of the factors relied upon by Mr Stefaniak persuaded me that the original tribunal’s discretion miscarried.
Regarding the first issue, it is a curious proposition that the respondent’s earlier claim (8-10 weeks rent) should inform the tribunal about what compensation is appropriate. It is the prerogative of any applicant to recast their claim, provided it is done in a procedurally fair manner. In this case, the respondent revised his claim on 18 September 2020, approximately six weeks prior to the hearing, and there was no objection on the grounds of procedural unfairness to him doing so.
Also, as best I can ascertain from reading the transcript and other documents, Ms Chesher never disputed the amount of the claim. On invitation, Mr Stefaniak could not take me to anything to show otherwise. He submitted, instead, that Ms Chesher was “overwhelmed”, and did not know that she could dispute quantum. There was no evidence to that effect. Also, there was no suggestion that any of the respondent’s statements about the inconvenience he had suffered as a result of the faulty intercom were not true or were overstated. Ms Chesher’s only contention was that there was no liability at all, as discussed above. The original tribunal was left to determine whether the claim was reasonable, and did so.
Regarding the second issue, I accept that in the ordinary course of litigation, it would be procedurally unfair for an applicant to revise their claim at such a late stage – particularly midway through the hearing. However, in this case, there was no objection to him doing so. More particularly, Ms Chesher – to her credit – appropriately acknowledged that the fault with the intercom was noted in the routine inspection conducted on 2 February 2019. When the original tribunal enquired as to what is “the correct date”, Ms Chesher said “yes, the 2nd [of February]”.[15] That was confirmed in the inspection report filed with the original application, to which Ms Chesher referred.
[15] Transcript of proceeding 26 October 2020, page 35, line 31
Ms Chesher acknowledged, appropriately and again to her credit, that the appellant’s manager had known all along that the faulty intercom and been noted since 2 February 2019. I commend her integrity.
It was for these reasons, that the original tribunal accepted the late correction. In the circumstances, I can see no error in the original tribunal permitting the amendment to correct the error. Indeed, in my view the original tribunal would have erred had it not permitted correction of the accepted error.
Regarding the third issue, it was in my view reasonable for the original tribunal to hear and determine the case by reference to the manner in which each party put their case. Where there was no dispute as to the facts that the respondent advanced regarding the inconvenience he had suffered as a consequence of the faulty intercom, and no suggestion that his claim for 20 percent of rent payable was excessive, I am not persuaded that the original tribunal fell into error by not proceeding in accordance with how the case was presented.
I can accept that the original tribunal could have inquired further of the respondent regarding his claim in order to be better informed about the reasonableness of it, but I do not accept that it was an error on the original tribunal’s part not to do so.
The NSWCTTT’s decision in Gorman v Meriton Apartments does not persuade me that the amount awarded in this case was unreasonable. As mentioned, an assessment of quantum involves an exercise of discretion, and minds will invariably differ. Determination of quantum should be done by reference to the facts and circumstances that are presented in the case in question. Reliance on a decision in a different jurisdiction, at a different time and by reference to different facts and circumstances should be done with great caution, if done at all.
Also, many of the emails from the appellant’s managing agent acknowledge that the faulty intercom was a serious issue. Mr Stefaniak relied on four emails sent by the managing agent on 9 and 24 April 2020, and 2 and 6 June 2020 which demonstrated the agent’s efforts to get the intercom fixed. The email sent on 24 April 2020 from the managing agent to the respondent said “I know this is a major inconvenience at the moment”.
I am not persuaded that it was not open for the original tribunal to find that the amount of the respondent’s claim was not reasonable.
Window leak - submissions on liability
The original tribunal noted that it had received, by way of evidence, two videos which showed that the respondent needed to manage rainwater entering through the unit’s window, that water was going on his furniture and that there was “a significant amount of water coming in. So the consequences, where there was a rain event, are significant.”[16] The original tribunal then proceeded to assess quantum.
[16] Transcript of proceeding 26 October 2020, page 43, line 33-35
Mr Stefaniak submitted that the appellant was not liable for the leak because, again, there was nothing she could do to fix the leak. He submitted that the appellant’s managing agent had reported it, repeatedly, to the strata manager and that responsibility for failing to repair the leak lay with the owners corporation. Mr Stefaniak said that his submissions on liability regarding the intercom applied equally to the leak from the window. He mentioned several times that the leak has still not been fixed.
Window leak - consideration on liability
Consistent with the intercom, there was no dispute in the proceeding before the original tribunal or on appeal that the window formed part of the ‘premises’, even if the owners corporation was responsible for fixing the leak. It follows that the appellant’s obligations under clause 55(1) applied also to the window.
Difficult questions sometimes arise as to whether a unit owner or the owners corporation is liable to pay the cost of repairs of a window in an apartment complex under the UTM Act,[17] but on either view the window forms part of the premises for the purposes of the RT Act.
[17] See McMillan & Anor v Owners Corporation-Units Plan No 79 [2019] ACAT 86
I am unable to see why the fact that the window still leaks is relevant. The respondent could only claim, as he did, for the period when he rented the premises.
Where I am satisfied that the window formed part of the premises rented to the respondent, for the reasons that the appellant was required to rectify the intercom, I am satisfied that the appellant was required to rectify the window leak pursuant to clause 55 of the SRTTs.
Window leak - submissions on quantum
The respondent claimed 20 percent of his rent as compensation for rainwater leaking through the window onto the carpet and his furniture. The original tribunal did not regard this loss of amenity as significant as the loss of the intercom because it was not a continuous event. The tribunal accepted that it was “a serious leak” and that there was “some flooding and it certainly caused property damage”, but concluded that five percent of the rent for the period claimed was an appropriate amount of compensation. It noted the claim was from 14 November 2017 to 13 July 2020, being a period of 1973 days. Allowing $3.21 per day, the original tribunal calculated compensation of $3,123.33.
Mr Stefaniak accepted that “any leak is annoying”, but submitted that the amount of compensation awarded was excessive. He took me to a “table of comparable verdicts” in Residential Tenancies Law and Practice New South Wales. The table includes a list of decisions made in NSW in which compensation was awarded for water penetration. The table refers to over 70 decisions. In each case, the table gives a 2 – 3 line summary of the decision. Mr Stefaniak drew my attention to nine of the decisions on the list made between 1998 and 2010.
Mr Stefaniak submitted, by reference to the nine decisions to which he referred, that the amount awarded by the original tribunal was excessive.
Window leak - consideration on quantum
The summaries of decisions to which Mr Stefaniak referred, and others on the list, well illustrate the great variety of circumstances in which compensation has been awarded for water penetration and the widely varying amounts of inconvenience to occupants, and kinds of damage to premises, that can occur. The cases also illustrated the high level of discretion that is exercised when determining appropriate compensation for a leak.
In my view, the decisions to which Mr Stefaniak referred do not suggest that the compensation awarded in this case was excessive. Many of the cases referred to a percentage of the rent for the purpose of calculating compensation, many of which are above 10 percent: in this case the rent reduction was five percent. Other decisions state an amount per week, ranging between $40 and $100 per week. In this case, the original tribunal awarded $22.47 per week.
Taken as a whole, the cases on the list do not persuade me that the amount awarded was excessive. Rather, the cases only illustrate the limited (if any) value in looking at different cases decided in a different jurisdiction at different times by reference to different facts and circumstances and different legislation.
The test remains that stated in House v The King. I am not satisfied that there was any error in the original tribunal’s exercise of its discretion, when determining appropriate compensation for the leak.
Conclusion
For these reasons, the application for appeal will be dismissed.
………………………………..
Presidential Member G McCarthy
| Date(s) of hearing | 13 December 2021 |
| Solicitor for the Appellant: | Mr B Stefaniak, Tu’ulakitau McGuire Lawyers |
| Respondent: | In person |
| Party Joined: | Ms A Hogan, Namadgi Legal |
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