Mercieca v NSW Land and Housing Corporation

[2019] NSWCATCD 66

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Mercieca v NSW Land and Housing Corporation [2019] NSWCATCD 66

Hearing dates:

9 August 2019 and 24 September 2019

Date of orders:

17 October 2019

Decision date:

17 October 2019

Jurisdiction:

Consumer and Commercial Division

Before:

Margaret Mary McCue

Decision:

1 The respondent is to pay to the applicant the sum of $ 1,550 on or before
31 October 2019. The monies are to be paid by a lump sum payment rather than a rental credit.

Catchwords:

Urgent repair; reimbursement; compensation

Legislation Cited:

Residential Tenancies Act 2010

Civil and Administrative Legislation (Repeal and Amendment) Act 2013

Category:

Principal judgment

Parties:

Helen Mercieca (applicant)
NSW Land and Housing Corporation (respondent)

Representation:

Helen Mercieca (applicant)

Mr Nash (respondent)

File Number(s):

SH 19/21509

Publication restriction:

Nil

Reasons for Decision

Application

The adjournment of the proceedings

1. The matter was listed before the tribunal on 9 August 2019. The matter was stood over part heard to 24 September 2019 to allow the respondent to formally serve documents on the applicant.

2. On the previous occasion, the tribunal clarified the precise nature of the application. The applicant seeks an order pursuant to section 65 (1) (b) RTA for reimbursement of $ 2,250.

3. In certain circumstances, a tenant may request reimbursement from the landlord for certain repairs and maintenance that fall within the category of an urgent repair. The applicant relies upon a safety issue as set out in the definition of section 62 (k) of the Act.

any fault or damage that causes the residential premises to be unsafe or insecure

4. In order for the applicant to succeed in the claim, the applicant needs to satisify the Tribunal that the respondent has not complied with its obligations to maintain and repair the premises as set in section 63 of the Act.

5. Further, the applicant says that as a result of the respondent’s breach for failure to repair and maintain the Cocos palm trees, the applicant is entitled to compensation. The applicant seeks an additional order for compensation pursuant to section 187 of the Act.

Appearances

6. The applicant, Mrs Helen Mercieca, appeared in person and gave her evidence after taking an oath.

7. Mr Nash appeared for the respondent and gave his evidence under oath, as well.

Jurisdiction

8. On the establishment date, 1 January 2014, the Civil and Administrative Legislation (Repeal and Amendment) Act 2013 amended certain statutes which previously conferred jurisdiction on now “abolished” tribunals.

9. NCAT has jurisdiction to hear and determine relevant matters in place of the “abolished” tribunals, including any application made pursuant to the Residential Tenancies Act (“the Act”).

The hearing

10. Mrs Mercieca is a long-standing tenant of the respondent and has resided in Flood Street Blacktown for 19 years. During the hearing, it transpired that the premises are located in a cluster of social housing properties in the immediate environs of Mrs Mercieca’s residential premises, including the home of her former next door neighbour. Mrs Mercieca gave evidence that the Cocos Palms, the subject of the complaint, were planted by her neighbour some years ago prior to the applicant moving into the Flood St premises.

11. Mrs Mercieca sourced this information from the former neighbour’s son. The respondent challenged this evidence. The matter was put to Mrs Mercieca. She confirmed her previous evidence that the Cocos palms were planted by her former neighbour, also a tenant of the respondent though now deceased.

12. Mrs Mercieca gave evidence that she moved into the premises some years ago. At that time, the Cocos palm trees were half their current
    height. In order to give some sense of proportion to the current height of the trees, it was common ground that the trees were approximately
    24 feet tall. The guttering on the fairly modest fibro property was around
    7-8 foot from ground level. This was used to benchmark the height of the trees in Mrs Mercieca’s premises.

13. Mrs Mercieca also complained that bats were coming into the Cocos palms. Mrs Mercieca said that the bat problem was “year round” and that the palm trees were located very close to her bedroom window.

14. The tribunal member mentioned that perhaps bats would be attracted to the palms tree during the “fruiting” season rather than all year round. Mrs Mercieca was adamant that this was not the case in Flood Street Blacktown.

15. Mrs Mercieca said that she let the respondent know about the palm trees and the bats. However, she had heard very little from the respondent since making the complaint some many years ago when the trees were of a lesser height. Initially, Mrs Mercieca wanted the palms trimmed in order to avoid the fronds dropping onto the surrounds of her home. More latterly, she sensed that the palms presented an imminent safety issue.

16. On a previous occasion in 2015 or thereabouts, Mrs Mercieca said that the respondent had sent someone to prune the palm trees. Mrs Mercieca said that the contractors were half-dressed, and had chain saws with them. She further said they were different from the “mobs”, a reference apparently to the housing officers. There was some suggestion that the privet hedge at the rear of the premises would be trimmed at the time of the attendance as well

17. There was evidence from the respondent that Mrs Mercieca had denied access to the team on two occasions when the contractors were proposing to undertake the works on 31 March and 27 May 2015. Mrs Mercieca denied that this was the case.

18. Mrs Mereieca’s evidence was that there were about seven palms in total mainly at the front of the house, and one in the rear yard of the premises. On reviewing the photographic evidence the trees were a short distance away from the front of the house and there was no front fence that would obstruct the access on those occasions.

19. Mrs Mercieca had complained to her local member about the respondent’s inaction in taking steps to prune the palm trees. Mrs Mercieca’s submitted evidence from the Family and Community Services in response to the local MP’s enquiry about the maintenance of the trees. The response was in the following terms:

NSW Land and Housing has raised work orders to prune and trim trees and scrubs up to 5 in total. This order was raised on 2 July 2015, with a due date 6 July 2015.

20. The scope of works for the attending contractors was to prune and trim the palms, though it appears that there was some conversation had with Mrs Mercieca about their removal on that occasion. The works ceased and the NSW Land and Housing Corporation was to further inspect the trees.

21. This evidence is important given that Mr Nash submitted in his evidence that his client, the respondent, had not accepted any obligation to maintain and trim the trees. This submission is contrary to the response received from the acting team leader sent to the MP Robinson in 2015.

22. The substance of Mrs Mercieca’s complaint was that the trees had become problematic not only because of their height, and the heaviness of the fronds, but because the bats inhabited the palms, allegedly all year round.

23. Mrs Mercieca said that she was constantly dealing with bat poo
    clean-ups. There were smells that emanated from the bats given that the trees were so close to her bedroom window. There was also evidence given that there was a fly problem associated with the bat droppings or poo, as it was referred to during the hearing. As well, there was the impending danger of the fronds falling from so significant a height. Mrs Mercieca said that the fronds that she had removed from the ground were very heavy. The tribunal remarks that Mrs Mercieca is a slightly built woman.

24. The Tribunal observed that there was no front fencing around Mrs Mercieca’s property. The Tribunal could appreciate that there would be some concerns had by passers-by if the fronds fell from such a height due to their heaviness.

25. Although there was some evidence that the matter was being looked into by the respondent’s maintenance team, when Mrs Mercieca made a further complaint to the new member for the Blacktown area, the MP advised her that Carmen Cotterill, a project officer at Land and Housing, commented as follows:

A technical inspector looked at the trees on 22/10/2018, and it was decided that there was no immediate plan to prune or remove the trees.

26. The note further said:

This will be reviewed at the next inspection due in August 2019.

27. As far as Mrs Mercieca was aware, no further inspection was conducted in 2019, as proposed.

28. On any view, the glibness of the technical inspector’s comments makes it difficult to appreciate why no immediate action was proposed, given Mrs Mercieca’s lengthy history of complaints to the respondent’s housing officers, and the intercession of the two local members of parliament.

29. Mrs Mercieca’s evidence included that she had attended council and was provided with a document seeking consent for the removal of the trees. The document was not available at the hearing. As Mrs Mercieca is not the registered proprietor of the property it would be a matter for the Land Corporation [that has standing to lodge the application] to seek the council’s consent for the removal of the trees. As far as Mrs Mercieca was aware, the respondent had not lodged the application.

30. In relation to the respondent’s obligations to repair and maintain the premises, Mr Nash, the respondent’s representative at the hearing, said that the file was not available. Accordingly, the respondent’s evidence did not include any work orders raised over the period in which Mrs Mercieca had complained to the Corporation. The tribunal remarked It may open to the tribunal to make a finding that the evidence in the files may not have assisted the respondent’s position.

31. Mr Nash was very helpful though not so familiar with matters the subject of the complaint made by Mrs Mercieca over a number of years. Mrs Mercieca said that she took matters into her own hands somewhat frustrated by what she perceived as the ineffectiveness of the response from the Corporation.

32. Mrs Mercieca’s evidence was a little difficult to follow at times. It appears that North Sydney Tree Service had attended the property some while ago to get a sense of the work that needed to be done. Mrs Mercieca said that 3 men had attended from the service a few years ago. However, it was not until the tree loppers or arborists arrived on 10 April 2019 that they provided her with a quote for the removal of the trees. The arborist commented in the tax invoice that:

They (the palms) are very big and tall and dangerous.

33. The respondent did not challenge the amount of the quote or that Mrs Mercieca had paid $ 2,250 to North Sydney Tree Service, as set out in the tax
    invoice. The tribunal accepts that position.

34. Mrs Mercieca said that the arborists were there for almost the whole of the day and their view was that the trees were dangerous and that the the fronds were “coming down.” Mrs Mercieca’s instructions were: “just go for it” – “get rid of the trees.”

35. Mrs Mercieca did not have consent from council to remove the trees; however, she said that they were not native trees. Mrs Mercieca said at the previous listing that she was in a position to pay for the lopping of the trees or the removal of the trees because she had received a small legacy from her father’s estate. She felt compelled to prioritise the tree removal though could have allocated those funds perhaps to a more pleasurable pursuit.

36. Mr Nash on behalf of the Corporation provided the late tender of a document received from council. The position at the council was that Mrs Mercieca wanted to seek approval retrospectively for removal of the Cocos palms. This was not available; however, it was unlikely that the council would take any action in the circumstances other than to issue a cautionary letter to the resident.

37. This supports the view that the Corporation is not exposed to the risk of payment of any penalty for any non-compliance with any tree preservation order in the area.

Summary

38. In its tax invoice, the North Sydney Tree Service expressed the following view about the palms:

They are very big and tall and dangerous.

39. Given that there is no contrary evidence, the tribunal accepts that position.

40. The tribunal makes a finding that the Corporation was in breach of its obligations to maintain the trees and failed to take appropriate steps over a number of years to do so.

41. Mrs Mercieca is entitled to be reimbursed to the maximum of $ 1,000 for the urgent repair she undertook herself given the safety issues referenced in section 62 (k) of the Act .

Compensation claim

42. As well, the tribunal makes a finding that the Corporation is in breach of its obligations pursuant to section 63 of the Act. Clearly, on the evidence the Corporation accepted responsibility for maintaining the Palms and delayed the maintenance order.

43. Mrs Mercieca’s current rent is around $ 259 per fortnight. Mindful of the fairly modest rent for the 3 bedroom home, the tribunal considers that the appropriate compensation is $ 550.

Order

44. The respondent is to pay to the applicant the sum of $ 1,550 on or before
    31 October 2019. The monies are to be paid by a lump sum payment rather than a rental credit.

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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: 26 November 2020