McDonald v NSW Land and Housing Corporation
[2015] NSWCATCD 48
•08 April 2015
Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: McDonald v NSW Land and Housing Corporation [2015] NSWCATCD 48 Hearing dates: 03 March 2015 Date of orders: 03 March 2015 Decision date: 08 April 2015 Jurisdiction: Consumer and Commercial Division Before: M Gilson, General Member Decision: The application is dismissed because:
Having considered the material placed before it, the Tribunal is not satisfied (at the civil standard of proof) that the grounds required to make the orders sought have been established.Catchwords: Terms of residential tenancy agreement, quiet enjoyment, maintenance. Legislation Cited: Residential Tenancies Act 2010 sections 20, 50, and 63 Category: Principal judgment Parties: Mark John McDonald (applicant)
NSW Land and Housing Corporation (respondent)File Number(s): SH 14/46946 Publication restriction: Unrestricted
reasons for decision
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These reasons are provided pursuant to section 62 (2) of the Civil and Administrative Tribunal Act 2013 (the NCAT Act) at the request of the applicant. The Tribunal gave oral reasons on 3 March 2015 and the applicant was present at the hearing. The hearing was sound recorded, however the reasons are produced from the member’s notes and recollections.
Application
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By way of an application lodged on 17 September 2014, the applicant sought orders that the respondent had breached the residential tenancy agreement by destroying plants in a native garden and thereby denying him the right to quiet enjoyment. He seeks damages arising from this; “to the sum of the cost of making the garden, with compound interest.” He also sought findings against an officer of the respondent.
Representation
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The applicant attended the hearing in person. The respondent was represented by Darryl Ford.
Proceedings
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The parties were given a number of opportunities to resolve the matter by conciliation pursuant to section 37 of the NCAT Act. The parties were unable to reach a settlement and the matter ultimately proceeded by way of a formal hearing. The hearing of the application was delayed by difficulties encountered with summonses and the exchange of evidence.
Jurisdiction
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On or around 25 September 2006 the parties entered into a written residential tenancy agreement with an initial rent of $135.00 per week. The premises are “residential premises” within the meaning of section 3 of the Residential Tenancies Act 2010 (the RT Act).
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Schedule 4, Part 3 of the NCAT Act establishes that the functions of the Tribunal in relation to the RT Act are allocated to the Tribunal’s Consumer and Commercial Division. The present matter proceeded in the Social Housing list of this division.
Applicant’s evidence
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As a result procedural directions issued by the Tribunal, and summonses requested by the applicant, a number of documents were received on Mr McDonald’s behalf. The documents included a brief written statement. The applicant gave affirmed oral evidence to the Tribunal.
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The applicant’s argument, as I understand it, is that by being allowed to plant and nurture trees and shrubs in the common property area adjacent to his residential premises with the consent of the landlord, he enjoys a right or interest in respect of the common property area. He claims that the subject area was of utility use to him by way of providing privacy to his premises. He asserts that the respondent’s actions in destroying the area by severe pruning, constitutes a breach of his right to quiet enjoyment.
Respondent’s evidence
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In accordance with the Tribunal’s procedural directions, the respondent provided a written submission together with related documents. Mr Ford, on behalf of the respondent, gave sworn oral evidence at the hearing.
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The respondent acknowledges that the applicant did plant and nurture shrubs and trees on the common property area, but claims this did not vest the applicant with any right or interest in respect of the area. Mr Ford stated that the respondent had a right and obligation to maintain and manage the premises and the common property areas. It is from fulfilling this obligation that the applicant’s claim allegedly arises, however Mr Ford contends that such actions cannot cause a breach of quiet enjoyment. Further, the respondent argues that the applicant’s claim for compensation would be defeated by the provisions of the Civil Liability Act 2002.
Findings and determination
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On or around 25 September 2006, the parties entered into a residential tenancy agreement for an initial period of 18 months. The residential premises are a unit within a 24 unit complex located at 6 Table Street, Port Macquarie. The entire complex is owned by the respondent and the complex is primarily for the housing of pensioners.
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It appears from the evidence, that in 2009 the applicant, with the knowledge and consent of the respondent, began the remediation of an area of common property adjacent to the rear of his premises. The applicant has planted lawn, shrubs and trees in this area and has cared for them. Also in this time the respondent has maintained the common property areas in the complex, including the subject area.
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In July 2014, following another controversial episode in late 2013, the respondent’s contractor, whilst undertaking maintenance work to the subject common property area, caused severe damage to a number of shrubs and trees. The respondent states that it has replanted mature shrubs to replace those plants which had been severely pruned. The applicant acknowledges that shrubs have been replanted; however he claims the replacements are neither advanced nor mature.
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Section 50 of the RT Act relevantly states:
“50 (1) A tenant is entitled to quiet enjoyment of the residential premises without interruption by the landlord or any person claiming by, through or under the landlord or having superior title (such as a head landlord) to that of the landlord.
(2) A landlord or landlord’s agent must not interfere with, or cause or permit any interference with, the reasonable peace comfort or privacy of the tenant in using the residential premises.”
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Section 63 of the RT Act relevantly states:
“63 (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.”
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Essential to the applicant’s position is his argument that by the respondent allowing him to plant and nurture trees and shrubs on the subject common property area, he enjoys a right or interest in respect of the area because of his customary use of the area. It appears to me that Mr McDonald is arguing that by such actions, the terms of the residential tenancy agreement are altered or varied so as to bestow upon him a right or interest in the common property area.
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The relationship between the parties is regulated by the RT Act, and it is my position that the RT Act does not contemplate the creation of such a right or interest. Further, common property does not form part of the residential premises.
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I also hold that the applicant’s argument is defeated by section 21 of the RT Act, which states:
“21 (1) A term of a residential tenancy agreement is void to the extent to which it:
(a) Is inconsistent with any term included in the agreement by this Act or the regulations, or
(b) Is prohibited by this Act or the regulations.”
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The applicant’s argument that he enjoys a right or interest in the subject common property area, in my view, cannot be sustained.
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The evidence causes me to hold that in the process of maintaining the complex and the residential premises, as required under the RT Act, the respondent has caused damage to a number of shrubs and trees located on common property, however the respondent has taken prompt action to replant in the area. In all the circumstances, I conclude that a breach of quiet enjoyment cannot arise from the respondent’s actions to carry out a statutory obligation established by the RT Act.
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The applicant’s request in his application that the Tribunal make findings against an officer of the respondent, is misconceived.
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The application fails and is therefore dismissed.
M Gilson
General Member
Civil and Administrative Tribunal of New South Wales
8 April 2015
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: 18 June 2015
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