Nicholson v Webber

[2023] NSWCATCD 65

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

Nicholson v Webber [2023] NSWCATCD 65

Hearing dates:

27 April 2023

Date of orders:

14 June 2023

Decision date:

14 June 2023

Jurisdiction:

Consumer and Commercial Division

Before:

J Alder, General Member

Decision:

1.The rent shall not exceed $875 per week as from 8 March 2022 until 30 November 2022.

2.The respondents are to pay the applicants the sum of $4,750 by way of refund of rent, such amount to be paid immediately.

3.The respondents are to pay the applicants the sum of $1,000 by way of compensation for breach of the covenant of quiet enjoyment, such amount to be paid immediately.

4. Pursuant to s 64 of the Civil and Administrative Tribunal Act, an interim order that the medical document emailed in error to the respondents by Mr Daniel Nicholson, the first applicant is not be disclosed by the respondents (or their agent) to any third party until further order. If the respondents oppose the interim order, they are to provide written submissions within 7 days of these Orders as to why it should be disclosed, failing which the order becomes permanent.

5. The applicants’ claim is otherwise dismissed

Catchwords:

LANDLORD AND TENANT - withdrawal or reduction of services – loss of enjoyment of premises - duty to repair –assessment of damages

Legislation Cited:

Residential Tenancies Act (NSW) 2010, ss 44, 50, 63, 65, 187(1)(d) and 190

Cases Cited:

Roberts v NSW Aboriginal Housing Office [2017] NSWCATAP 9.

Moore v Scenic Tours Pty Ltd [2020] HCA 17

Baltic Shipping Co v Dillon (1993)176 CLR 344; [1993] HCA 4

Torpey v Stewart [2021] NSWCATAP 248

Kork v Merheb [2021] NSWCATAP 349

Sewell v Zvirblis [2022] NSWCATAP 337

Advance Fitness Corporation Pty Ltd v Bondi Diggers Memorial & Sporting Club Ltd [1999] NSWSC 264

Category:

Principal judgment

Parties:

Daniel Nicholson and Matthew Vogts (applicants)
Kimberley Webber and Roy Macleod (respondents)

Representation:

Applicants: self-represented by Mr Nicholson
Respondents: represented by Ms Schubert of Di Jones Real Estate Neutral Bay

File Number(s):

RT 23/00476

Publication restriction:

Nil

REASONS FOR DECISION

Summary of claim

1. These proceedings involve a claim by the tenants against the landlords for a rent reduction under s 44(1)(b) of the Residential Tenancies Act 2010 (Act) and compensation in respect of alleged breach by the landlords of their obligation under s 50 of the Act.

Background

2. On 15 November 2021, the applicants, Mr Daniel Nicholson and Matthew Vogts (tenants) and Ms Kimberley Weber and Mr Roy MacLeod (landlords) entered into a 12 month residential tenancy agreement (RTA) for a two bedroom plus study apartment at Kurraba Point (Premises) ending on 13 November 2022. The fortnightly rent was $2,000.

3. The Premises were managed by Di Jones Neutral Bay (Agent).

4. On 13 November 2022, the tenants gave 14 days’ notice to vacate at the end of the fixed term.

5. On 30 November 2022, the tenants provided vacant possession by handing back the keys.

6. The rental bond of $4,000 was paid and released to the tenants in full when they vacated.

Orders sought

7. By application filed 13 November 2022, the tenants seek orders (confirmed at the conciliation hearing on 31 January 2023) totalling $21,400 as follows:

1. Under s 44(1)(b) an order that the rent charged for the period 8 March 2022 to the end of the tenancy (being a period of 38 weeks) was excessive and rent be reduced by 30% for that period. A refund of rent of $11,400 is sought.

2. Under s 187(1)(d) compensation of $10,000 for loss of enjoyment.

8. The primary complaint is water ingress into the study and resulting mould.

9. There were also issues with expired smoke detectors and being unable to log in to the “Property Tree” portal to be able to receive timely rent receipts and log maintenance requests.

10. The initial application had also sought an order under s 65(1)(b) for reimbursement for urgent repairs. The correspondence suggests these repairs related to the replacement of smoke detectors and batteries by the tenants, but no receipts have been provided and this was not an order confirmed at the conciliation hearing.

11. The “Reason for Orders” states that the tenants also sought reimbursement for damaged items and remedial works undertaken, but no figure was provided. The correspondence suggests that tenants would make a claim for economic loss and seek reimbursement of expenses such as dry-cleaning, dehumidifying, damaged clothing and furniture due to the leak and compensation for damage to their washing machine allegedly caused by the Agent’s maintenance company. Again, no receipts have been provided, no claim for economic loss has been made and this was not an order confirmed at the conciliation hearing.

Procedural history of the matter

12. Initial proceedings (RT 22/50450) had been commenced by Mr Nicholson only (and not the other named tenant, Mr Vogts). On 14 November 2022, a Notice of Hearing was issued to the parties by the Tribunal Registry advising the matter was listed for an in person Conciliation Hearing on 8 December 2022.

13. The next day, on 15 November 2022, according to travel documents provided by Mr Nicholson, he booked a flight to the UK departing on 23 November 2022. On 6 December, Mr Nicholson wrote to the Registry requesting to appear at the hearing on the 8 December 2022 by virtual link as he would be in the UK. He made no mention of any illness. On 7 December 2022, the Tribunal Registry provided him with a virtual link. On 8 December 2022, the proceedings were dismissed as Mr Nicholson failed to appear via the virtual link. On 19 December he applied to reinstate the matter (RT 22/55596). He said his failure to attend was because he had been unwell since 5 December 2022 and tested positive to Covid on the day of the hearing. The respondent objected to the reinstatement due to insufficient medical evidence by Mr Nicholson; a photo taken of a rapid antigen test was taken on 15 December, a week after the hearing. The proceedings were ultimately reinstated as Mr Nicholson’s explanation was nonetheless accepted by the Tribunal.

This hearing, late documents, request for adjournment

14. On 31 January 2023, these (re-registered) proceedings (RT 23/00476) were listed for a (second) in person conciliation hearing. Mr Nicholson appeared. It is unclear from the file if he appeared in person or by video link, though presumably by video if he had remained in the UK. The matter did not resolve. An order joining Matthew Vogts, the other named tenant on the RTA was made. Mr Nicholson was given leave to appear virtually at the final hearing as he said he would be in the UK.

15. Mr Nicholson had filed documents electronically on 31 January 2023, which include six PDFs containing correspondence with the Agent, photos and medical records as to tick treatment. Some of those documents, such as screen shots of text messages cannot be viewed. Directions had been made for the tenants to file and serve hard copies of their documents by 14 February 2023 and the landlord to respond by 28 February 2023. The tenants did not file any documents by 14 February 2023 and the Agent notified the Registry requesting the matter be dismissed. Mr Nicholson requested an extension of time as he said there had been a postal strike in the UK. Upon the Agent suggesting he email the documents to her, Mr Nicholson said he would email his documents to the Agent on 22 February 2023, which he did not do and then again on 27 February 2023, which again he failed to do.

16. On 27 April 2023 the matter came before me for a three hour final hearing. Ms Schubert of the Agent’s office appeared in person on behalf of the landlord. Mr Nicholson appeared virtually from the UK.

17. The landlord relied on documents filed on 1 March 2023 (260 pages).

18. Mr Nicholson advised he had the day before, arranged for his documents to be couriered to the Tribunal. Those documents had not arrived.

19. Mr Nicholson sought to speak privately to me, which I refused as the guiding principle of the Tribunal is for open and public administration of justice.

20. Mr Nicholson then sought an adjournment as he said that a “serious private medical issue” had caused his delay in preparing his evidence. Ms Schubert opposed the adjournment as she said that any current medical issue was irrelevant as he had vacated some five months ago and had had ample to prepare his case, which was similarly first commenced five months ago.

21. I refused the adjournment as both parties were in attendance, the matter had had a prolonged history, the applicant had already filed documents and it was in the interests of the parties to hear and determine the matter in accordance with the Tribunal’s guiding principle to deal with the real issues in the proceedings in a just, quick, and cheap manner: s 36(1) NCAT Act.

22. Just as the hearing was commencing, the tenants’ documents were delivered to the Tribunal room by courier with a copy set provided to the Agent.

23. Ms Schubert objected to the documents being allowed into evidence as they were 10 weeks late, she had no prior notice of their contents and Mr Nicholson had previously told her he would email them to her but had not done so.

24. The documents are unpaginated and number approximately 200 pages. I did not allow them into evidence due to the extensive delay and the prejudice to the landlords in receiving them so late. I do note however that the bulk of the documents appear to be duplicates of the tenants’ documents filed electronically on 31 January 2023. An exception being two medical certificates dated 13 and 14 February 2023 from a Sydney medical practitioner and a NZ psychologist. I note that these predate the date Mr Nicholson said he would email the tenants’ evidence to the Agent by some nine days, so he could very easily have provided copies to the Agent in advance of the hearing. Notwithstanding, I have allowed the tenants to rely on the medical certificates. The rules of evidence do not apply in these proceedings and I have dealt with any objections by way of the weight I have given to the certificates in my findings below.

Confidentiality order under s 64 of the NCAT Act

25. After the hearing, Mr Nicholson wrote to the Registry raising concerns about the confidentiality of a letter from his doctor he mistakenly sent to the respondent concerning a serious incident. He requests that the respondent not share that information.

26. Section 64(1) of the NSW Civil and Administrative Tribunal Act (NSW) 2013 states as follows:

If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders—

(c)  an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal,

(d)  an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings.

27. As mentioned, whilst the guiding principle of the Tribunal is for open and public administration of justice, the Tribunal may, where it is desirable to do so, restrict and prohibit disclosures concerning proceedings under s 64. The Tribunal accepts Mr Nicholson’s reasons for seeking non-disclosure orders due to the sensitivity of the material.

28. Consequently, I have made an interim order the document not be disclosed by the respondents (or their managing agent) to any third party until further order. If the respondents oppose the order, they are to provide written submissions within seven days as to why it should be disclosed, failing which the order becomes permanent.

Legal principles

Breaches

Duty to repair - s 63

29. Under s 63 of the Act (and clause 19.3 of the RTA) a landlord must both provide and maintain the premises in a reasonable state of repair, having regard to the age of, rent payable for and prospective life of the premises.

30. The obligation applies even if a tenant had notice of the state of disrepair before entering into occupation of the premises: s 63(2).

31. This duty is qualified by the notion of reasonableness. By reason of s 65(3A) and 65(3)(b), the landlord has not breached its obligation under s 63(1) unless the landlord is aware, or should reasonably have been aware, of the need to repair and has failed to act with reasonable diligence to have the repair performed.

32. The test is objective and once the landlord knew or should reasonably have known of the need to repair, the repair must be carried out within a reasonable time and is not excused by conduct or delay caused by tradespersons or suppliers.

33. The mere fact that an attempt is made to repair is no defence to a landlord’s liability to repair and maintain where such attempts are unsuccessful. Rather, repairs must be effected within a reasonable time.

Quiet enjoyment - s 50

34. Section 50(1) of the Act (clause 15.1 of the RTA) states that a tenant has a right to the quiet enjoyment the premises without interruption by the landlord or anyone acting on the landlord’s behalf.

35. Section 50(2) (clause 15.2) provides that a landlord, or landlord's agent, must not ‘interfere with, cause or permit any interference with, the reasonable peace, comfort or privacy of the tenant.

36. The concept concerns a loss of use/amenity suffered by a tenant (generally due to failure of the landlord to keep the premises in a state of good repair).

37. It can also involve disappointment or distress (or similar) arising from a breach of the covenant of quite enjoyment.

38. The concept does not contemplate an absolute entitlement to peace, comfort, and privacy, but a relative one, ascertained by a reasonableness standard. Mere inconvenience is not sufficient to constitute an interference, there must be a substantial interference.

39. The test for determining whether a landlord has breached the obligation to provide the tenant with quiet enjoyment is set out in the judgment of Austin J in Advance Fitness Corporation Pty Ltd v Bondi Diggers Memorial & Sporting Club Ltd [1999] NSWSC 264 at [111]. It is whether there had been substantial interference with the enjoyment of the premises through an act or omission that was either deliberate or negligent in the sense that the consequences were reasonably foreseeable.

Compensation for breach

40. Section 190(1) provides that a landlord or a tenant may apply to the Tribunal for an order in relation to a breach of a residential tenancy agreement.

41. If the landlords have breached their obligations under the Act, it is open to the Tribunal to make orders under s 187. It may award compensation to the tenants under s187(1)(d) and/or make a money order under s 187(1)(c). This is a discretionary power.

Mitigation

42. If the tenants establish breach by the landlords of the landlords’ obligations under ss 50 and/or 63 of the Act, the landlords will not be liable for compensation or damages if the tenants have not taken all reasonable measures to mitigate their loss.

43. The landlords bear the onus of proof in respect of the issue of failure to mitigate.

Time limits for breach

44. Claims for breach must be made within the period prescribed by the Regulations after the tenants became aware of the breach, which is three months: reg 39(9).

45. In relation to the leak, should this be proven as a breach, I view it as a continuing breach existing at the time the tenants brought their claim on 13 November 2022.

Limit of compensation for breach

46. The maximum amount the Tribunal may award under s 187(1) is $15,000: ss 187(4)(a) and 190 and Regulation 40(b). The applicant’s combined monetary claims exceeds that amount and the tenants did not concede to the jurisdictional limit. However, arguably any rent refund does not fall under s 187, but under s 44(1)(b), the result being the only claim under s 187 is for $10,000, which is within the limit. Section 44(1)(b) has no monetary limit, apart from a restriction on a rent reduction order taking effect for longer than 12 months: s 44(6). The 12 month limit is not relevant to the period the subject of this claim.

47. Given my findings, I have not had to determine this issue.

Assessment of damages for breach - type of loss

48. The tenants seek compensation of $10,000, which is in the nature of non-economic loss, for the breach of the covenant of enjoyment.

49. As we have seen, “enjoyment” is a broad concept.

50. If a breach is found, the tenants are entitled to be compensated for the effect of the breach on their loss of use. They may also be entitled to compensation for the effect of the breach on their rational feelings of distress, anxiety, disappointment, frustration, indignation caused by the breach (or howsoever the tenants’ “mental reaction to a breach of contract” per Brennan J in Baltic Shipping Co v Dillon (1993)176 CLR 344; [1993] HCA 4 might be described) which was not consequential on physical injury or psychiatric illness. This is a recoverable head of loss not captured by s 16 of the Civil Liability Act (NSW) 2002 (CLA): Moore v Scenic Tours Pty Ltd (2000) 268 CLR 326; [2020] HCA 17.

Excessive rent – s 44(1)(b)

51. Separate to the claim for breach of s 50, the tenants have brought a claim under s 44(1)(b) for a retrospective 30% rent reduction. The claim is framed as one relating to the landlord’s failure to address the leak and mould in the Premises which they say adversely affected their use of the Premises.

52. Section 44(1)(b) states that the Tribunal can make an order that the rent payable is excessive having regard to the reduction or withdrawal by the landlord of any goods, services or facilities provided with the Premises.

53. In determining whether rent is excessive, as specified in s44(5) of the Act, the Tribunal may have regard to the following factors:

(d)  the state of repair of the residential premises,

(e)  the accommodation and amenities provided in the residential premises,

…

(h)  any other matter it considers relevant (other than the income of the tenant or the tenant’s ability to afford the rent increase or rent).

54. Claims under s44(1)(b) must be brought prior to the end of the tenancy: s 44(3). The tenants’ application meets this requirement.

55. A claim for a rent reduction under s 44 is different to a claim for damages for breach of the covenant for quiet enjoyment in s 50 (Kork v Merheb [2021] NSWCATAP 349 at [66]) and remedy separate losses suffered by the tenant.

56. An order that rent is excessive under s 44(1)(b) proceeds on the basis that the physical characteristics or qualities of the premises have been withdrawn or reduced such as to affect the tenant’s use of the premises.

57. An order for compensation for loss of enjoyment which, as pleaded in this case, includes distress, anxiety and disappointment, proceeds on the basis that the failure to repair has caused the tenant mental suffering short of personal injury.

58. If both are proven, the tenants would be entitled to damages for loss of enjoyment, amenity or use and a rent reduction for withdrawal or reduction of facilities. A breach of the obligation under s 63 to maintain premises in a reasonable state of repair may amount to a withdrawal or reduction of services by the landlord – see Roberts v NSW Aboriginal Housing Office [2017] NSWCATAP 9 at [113]-[114]. Again, this would entitle the tenants to both compensation (say for economic loss of damaged goods - although this is not claimed here) and a rent reduction for loss of use. And if the nature of the defect is such that the quiet enjoyment of the premises is affected, there may be a breach of s 50, even if the repairs were otherwise effected with reasonable diligence. Such a breach can itself amount to a reduction of goods, services or facilities by the landlord: Roberts at [120].

54. As noted in Roberts at [86] there may be overlapping considerations and it may be inappropriate to award damages for loss of use and reduce the rent for withdrawal or reduction of facilities. So, when assessing compensation or damages for breach of s 50 of the Act, the Tribunal must also be careful not to award ‘double compensation’ for overlapping breaches.

55. Finally, s 44(1)(b) necessarily involves conduct “by the landlord”: see Sewell v Zvirblis [2022] NSWCATAP 337 at [64-81]. That is, the landlords, by their actions or omissions (or the actions or omissions of their Agent) must have caused the leak.

Onus of proof

61. The tenants bear the onus of proving their claims.

Tenants’ submissions

62. Mr Nicholson submits as follows.

63. At the start of the tenancy he was told by the Agent: “We will NOT action any maintenance issues noted in the report, we require a maintenance request. Please ensure you log any maintenance issues through your Tenant Maintenance App for action.”

64. He was unable to log in to the “Property Tree” portal to be able log maintenance requests and receive rent receipts. Mr Nicholson says he sent “twenty plus” emails to the Agent and made multiple calls to the Agent’s software vendor, MRI to troubleshoot on the Agent’s behalf, to no avail as he was still left with a message at login saying the property manager needs to enable the tenants’ account. The Agent then allowed him to call with any maintenance requests.

65. On 21 February 2022 he wrote to the Agent: “Our tenancy started in November last year, it’s nearly March and we’ve been very patient and accommodating waiting for the maintenance issues (from before our tenancy began) to be addressed… Could somebody please let me know when I will be able to log in to the portal.”

66. On 8 March 2022, he reported a leak from the ceiling in the study.

67. He relies on five photos dated 8 March showing black marks around the skylight, water on the wooden floorboards and computer equipment on a desk.

68. Ms Russell of the Agent’s office responded the next day that a work order would be lodged but said that due to the extreme weather, roofers would not get up on the roofs until the weather had cleared. It was a period of above average rainfall across Sydney. Ms Russell said she would arrange for someone to get out there as soon as possible.

69. Mr Nicholson submits dampness spread through the walls into the next room.

70. He used multiple containers to catch the water, which was a foul brown colour.

71. His husband used the room as a full time home office. It contained a video conferencing set up which had to be relocated to the living room, so a second room was effectively lost. They had to move clothes and other items out of the study and stacked them in the dining room or stored them in sealed containers. A lot of clothes had to be dry cleaned.

72. On 3 July 2022 he had heard nothing further from the Agent and chased up the repairs to the leak. He was told by Ms Russell she had immediately reported the issue to Strata in March and she would follow it up.

73. In August 2022, he discovered that Ms Russell had not reported the matter to the Strata Manager when he had reported the leak five months prior.

74. On 28 August 2022, the landlord’s roofer, APT Roofing reported the skylight and its frame needed replacing as the front of the skylight was too low and needed to be raised and the job was more suitable for a builder or carpenter.

75. Mould worsened during the tenancy as a result of the damp.

76. As to his physical health, in early March 2022, he was cleaning the bathroom and started to feel itchy. His legs itched and spread to the rest of his body and his lip swelled. He went to his GP and was prescribed antibiotics and creams. He relies on a medical certificate from Dr Shruti Sethi who attests to Mr Nicholson seeing multiple doctors at her Walker Street Doctor’s practice on eight occasions from the beginning of March 2022 for insect bites following a “tick infestation” at his residence. Dr Sethi says that Mr Nicholson also developed an allergic reaction to the bites and that Mr Vogts was also affected. Mr Nicholson also had his bites assessed at WISE (Walk in Specialist Emergency Clinic). He also went to Royal North Shore Hospital on 10 March 2022. The hospital’s discharge certificate states no ticks were detected but tick bites were confirmed. The tenant believes ticks came from a dirt patch in the bathroom and he attributes them to dampness at the Premises.

77. Dr Sethi states: “They both reported a traumatising experience… which required relationship counselling.” Daniel was referred to a clinical psychologist and a psychiatrist due to “reported exacerbate[ion] of his anxiety due to this.”

78. As to the anxiety and stress of Mr Vogt, a letter from a NZ clinical psychologist dated 14 February 2023 attests he was “emotionally and psychologically impacted by… leaks, dampness, ticks and mould”, which contributed significantly to his anxiety, mood and strain on his relationship..”

79. On 22 August 2022, the Owners Corporation requested all tenants and owners to check their smoke detectors. On 29 August 2022, Mr Nicholson checked and reported neither were working; the batteries had expired in 2015 and the detectors expired in 2020. He replaced both detectors and the batteries. The Agent had incorrectly told them at the start of the tenancy the smoke alarms were hardwired and not battery operated and were not the responsibility of the Owners Corporation. Consequently, they had been without fire detection for nine months.

80. In late October 2022/early November 2022, he requested a 30% rent reduction, which was refused. He based his 30% calculation on what he says is the loss of three rooms. He says he and Mr Vogts only had use of five rooms out of eight.

81. On 13 November 2022, they gave notice to vacate at the end of the fixed term.

82. The repairs as recommended in late August 2022 were not carried out until after he had given his notice, which was an unacceptable delay to be without a home office for nine months.

83. The tenants received no rent reduction during the tenancy.

Landlords’ submissions

84. Ms Schubert submitted as follows.

85. The house is old but in good condition with a complete renovation carried out in 2012. It has a car space and eight rooms: two bedrooms, study, entrance, kitchen, bathroom, living and dining.

86. The leak from the ceiling and wall of the study (described as bedroom three in the condition report) was reported by the tenants on 8 March 2022 and steps were taken by the previous managing agent, Ms Russell to engage a roofer straight away. However, the landlord’s roofer APT Roofing advised delays of up to 13 weeks due to the bad weather.

87. On 21 March 2022, the Agent arranged for an extractor fan.

88. On 7 July and in August, 2022 the Agent conducted inspections.

89. Delays with roofer availability occurred until August 2022.

90. It then became apparent the problem was a strata issue and on 15 August the Agent notified the Strata Manager of the leak. Up until that point the landlords had believed it was an owner issue.

91. On 29 August 2022, a temporary fix was put in place by Ivy Roofing, who were engaged by the Strata Manager to make the roof safe by installing a tarp over the skylight to prevent further leaks. They also quoted to repair the back tray of the skylight for approximately $6,000.

92. On 17 September, the Strata Manager advised that it was the owner of the Premises and not the Owners Corporation who was in fact responsible to repair and maintain roof windows.

93. The roof repairs were completed by the landlord’s roofer on 23 November 2022.

94. The leak did not spread to other rooms. It only leaked when it rained.

95. The landlords concede the tenants lost the use of the study but they have made a generous offer of settlement, roughly based on the loss of one room out of eight rooms from 8 March 2022 until the leak was permanently fixed.

96. The tenant waited until the end of the tenancy to bring a claim.

97. There is no evidence of any ticks in the bathroom (or inside the property) or being due to the leak. The tenants never requested a pest inspection.

98. Smoke detectors were never reported.

99. The use of dehumidifiers was never reported. The Agent did not see buckets of water being used.

100. The landlords would have reimbursed the tenants if they had submitted invoices.

101. The two medical certificates are not contemporaneous, being dated three months after the tenants vacated.

Findings

Section 44(1)(b)

102. I am satisfied there was from at least 8 March 2022 until late November 2022 a reduction of goods, services or facilities in the residential premises by the landlords in that the tenants were unable to use the study due to the water leak. I accept that the leak originated from the skylight in the study which had historically not been installed correctly.

103. I find that the landlords only made minor and superficial attempts to fix the leak up until 29 August 2022, some five months after it was reported by the tenants to the Agent, at which time a tarp was placed over the skylight. I find the delay to be unreasonably lengthy. Unavailability of trades is no defence. After that time, no substantial repairs were undertaken, despite the landlords’ roofer stating the back tray to the skylight needing to be replaced as it had not been installed correctly, a seemingly simple fix. Again, delays and confusion by the Strata Committee are no excuse. Although I note that upon being notified in mid-August 2022, the Strata Manager had made safe the roof within two weeks, something which the landlords had failed to do for five months. After 29 August 2022, I find that the landlords failed within a reasonable time to rectify the skylight leak up for a further four months, until the tenants vacated. I find that this amounts to a withdrawal or reduction of services by the landlord by reason of the landlords’ omission to comply with the obligation under s 63.

104. However, I consider a 30% rent reduction for the period 8 March 2022 to the end of the tenancy on 30 November 2022 to be excessive. I accept that the leak was in one room from a discrete spot and occurred intermittently. The tenant has not tendered photos showing an inability to use the living room and dining room. There is no evidence of significant mould or dampness throughout the Premises.

105. I have considered the condition reports and the number of rooms and consider a 12.5% rent reduction for 38 weeks which amounts to $4,750 to be appropriate for the loss of amenity of the study.

106. As the RTA has now come to an end consequently, in addition to making an order to reduce the rent by $4,750, it is also appropriate to make an order that the respondents pay this sum to the applicants.

Section 50

107. For reasons outlined below, I find that there has been a breach of the covenant of quiet enjoyment.

108. The tenants have already been compensated for the loss of use and amenity by way of a rent reduction.

109. However, I accept they have suffered a loss of enjoyment in other ways. They have been substantially inconvenienced during the Covid lock down by having to move items out of the study, including conferencing equipment set up for a home office, store clothes and clean up water leaks, all over an unreasonable lengthy period of nine months.

110. I accept that Mr Nicholson has been substantially frustrated by a portal that did not operate for the whole of the tenancy, but he could still have made requests direct to the Agent.

111. As to their asserted stress and anxiety, this has been pleaded as part of the loss of $10,000 said to have arisen from a breach of ss 50 caused by the failure to repair. A claim for mental stress has not been brought as a separate or additional head of loss as per Torpey v Stewart [2021] NSWCATAP 248 at [24] - [25]. The amount of $10,000 has not been apportioned between different categories of potential non-financial loss such as distress, discomfort, inconvenience, frustration and disappointment. Nonetheless, I have considered the alleged stress as a head of loss arising from a breach of the covenant of s 50.

112. I accept that the tenants have suffered some distress arising from a breach of the covenant of quiet enjoyment due to the failure to repair the leak. I also find that the tenants’ stress is not a “personal injury” within the meaning of the CLA as no mental diagnosis is given; Dr Sethi refers merely to Mr Nicolson’s “reported exacerbation of anxiety” and Ms Stenhouse to Mr Vogt’s “anxiety”. As a consequence, the loss is recoverable and not restricted by the CLA.

113. As to the nature of the stress and anxiety however, I do not attach a lot of weight to Dr Sethi’s medical certificate. It is clear Dr Sethi personally has not treated the tenants and as such, her evidence is not first hand. There are no contemporaneous reports from Mr Nicholson’s treating GP from the eight appointments he had at Walker Street Doctors, his psychologist or his psychiatrist as to his mental state at the time. Neither Mr Nicholson nor Mr Vogt have filed sworn affidavits attesting to the adverse effects of the leak on their state of mind.

114. The tenant said the leak spread moisture and mould throughout the Premises. I reject that submission for lack of evidence. Apart from some black marks around the skylight, there is no photographic evidence of mould in the study or other rooms or a mould report attesting to significant mould and dampness. There are no invoices for, or photos of, humidifiers or invoices for drycleaning expenses. No receipts have been tendered for any damaged furniture or clothes.

115. The tenants say the “tick infestation” during the tenancy as a result of dampness, caused them anxiety. There is no evidence of a tick infestation at the Premises and I reject this submission. Whilst I accept that Mr Nicholson may have contracted ticks and suffered insect bites, there is no causal link to the leak or asserted dampness at the Premises. There is no evidence of ticks being inside the Premises. The discharge statement states there is no presence of ticks or tick larvae on Mr Nicholson.

116. Much of Mr Nicholson’s asserted distress and anxiety arises from his assertions about the presence of ticks, rather than the existence of the leak itself. Dr Sethi refers to the “traumatising experience” of the ticks which affected the tenants’ relationship and required counselling. Given I have found no evidence of ticks at the Premises, this loss cannot be said to flow from any breach.

117. Further, if Mr Nicholson was suffering from a “personal injury” as a result of the bites, any mental stress associated with such an injury would not be recoverable under the CLA. The discharge statement records Mr Nicholson presented at hospital with “multiple discrete erythematous macules” (being discoloured areas of skin) across his legs, upper limbs, back, neck and lower lip with lower lip swelling. The diagnosis on the discharge statement is “tick bite without infection” with Mr Nicholson suffering “mild allergic symptoms. Nil concerning features for severe allergic reaction.” Dr Sethi states he was on prescribed antibiotics, steroids for his allergic reactions and ivermectin (an antiparasitic drug). The discharge statement also refers to his use of permethrin cream, which is used to treat scabies. Whether all of above symptoms are conclusive of a “personal injury” is not required to be ascertained by me given my rejection of the presence of ticks at the Premises, but I would likely find Mr Nicholson’s condition falls within the definition of “injury” in s 11 of the CLA which means personal injury and includes “(b) impairment of a person’s physical or mental condition.” The consequence of this being any stress associated with tick bites is not recoverable as it is caught by s 16(1) of the CLA, which provides no award for such loss could be awarded unless the severity of the non-economic loss was at least 15% of the most extreme case. There is no basis upon which to make such a finding.

118. The discharge statement recommends a pest treatment be carried out but there is no evidence the ticks were reported to the Agent at the time or what steps the tenants took to mitigate their loss, i.e. by arranging a pest spray.

119. It is for all of these reasons I find the amount of $10,000 for compensation sought for breach of the covenant of quiet enjoyment to be excessive. Taking all of the above mentioned factors into account, I assess compensation at $1,000.

120. I make orders as above.

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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

Amendments

11 August 2023 - Formatting amendments.

15 August 2023 - Correction of parties names.

Decision last updated: 15 August 2023