O'Leary v Srisivalingam

[2023] NSWCATCD 112

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

O’Leary v Srisivalingam [2023] NSWCATCD 112

Hearing dates:

13 September 2023

Date of orders:

19 September 2023

Decision date:

19 September 2023

Jurisdiction:

Consumer and Commercial Division

Before:

K George, General Member

Decision:

1. On or before 2 October 2023, the tenants, Rhys O’Leary and Anne Trayner, are to pay the landlord, Siv Srisivalingam, the amount of $4000.00.

2. The tenants’ application is otherwise dismissed.

Catchwords:

LEASES AND TENANCIES - Residential Tenancies Act 2010 (NSW) – Landlord’s obligation to repair and maintain premises – provide premises fit for habitation - what constitutes an application - extension of time - compensation

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW)

Civil and Administrative Tribunal Rules 2014 (NSW)

Civil Liability Act 2002 (NSW)

Residential Tenancies Act 2010 (NSW)

Residential Tenancies Regulation 2019 (NSW)

Cases Cited:

Ballard v Multiplex [2012] NSWSC 426

Commonwealth v Amann Aviation Pty Limited (1991) 174 CLR 64

Duffey v Tunteveski; Tuntevski v Duffey [2020] NSWCATCD 24

Hadley v Baxendale [1854] 9 Ex 341

In the Matter of Hillsea Pty Limited [2019] NSWSC 1152

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

Nguyen v Cosmopolitan Homes [2008] NSWCA 246

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

Pacorp Holdings Pty Ltd v Waller [2017] NSWCATAP 167

Pollock v NSW Trustee & Guardian [2022] NSWSC 923

Roberts v NSW Aboriginal Housing Office [2017] NSWCATAP 9

Walker v Northern Beaches Council [2022] NSWCATAD 8

Warner v Hung, in the matter of Bellpac Pty Limited (Receivers and Managers Appointed) (In Liquidation) (No 2) [2011] FCA 1123

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Rhys O’Leary and Anne Trayner (applicants)

Siv Srisivalingam (respondent)

Representation:

Rhys O’Leary (self represented applicant)

Bas G Baskaran (respondent)

File Number(s):

RT 23/07849

Publication restriction:

Nil

DECISION

Procedural history

1. The tenants’ application is dated 22 September 2022 in related matter RT 22/42560. They sought payment of the bond in full.

2. On 10 October 2022 the application was listed for conciliation and group list hearing. Both parties attended and the Tribunal made procedural directions for exchange of evidence and adjourned the matter for final hearing.

3. The application was finally heard and determined by the Tribunal on 8 November 2022.

4. In addition to the bond claim, the Tribunal also considered the tenants’ claim for compensation, although it does not appear that the tenants were at any stage of the proceedings given formal leave to amend their application to include a claim for compensation.

5. The Tribunal found partially in favour of the tenants. The only order relevant to the present proceedings was the order that the landlord pay the tenants compensation of $15,000.00 in respect of a leak which the Tribunal found to be sewage.

6. The landlord appealed the Tribunal’s decision.

7. At the callover of the appeal on 9 December 2022, Principal Member Suthers stayed the operation of the order to pay compensation, on the condition that the landlord paid the sum of $5,000.00 to the tenants, in partial satisfaction of the judgement sum.

8. The tenants agree that the landlord has paid them this sum.

9. On 15 February 2023 the Appeal Panel allowed the appeal in relation to the order for compensation. It remitted the proceedings back to the Tribunal for determination.

10. The application was reregistered as RT 23/07849

11. On 14 March 2023 the application was listed for a Directions Hearing. The Tribunal made orders for the provision of documents in preparation for the final hearing and formally granted the tenants leave to amend their claim to seek an order pursuant to sections 187 and 190 of the Residential Tenancies Act 2010 (NSW) (‘the Act’) for compensation of $15,000.00.

12. The Tribunal noted that whether time to bring the proceedings would be extended under regulation 39 of Residential Tenancies Regulation 2019 (NSW) and section 41 of the Civil and Administrative Tribunal Act 2013 (NSW) (“the NCAT Act”) is a matter for consideration at the remitted hearing.

Evidence and submissions

13. Mr Baskaran appeared in person by leave of the Tribunal and with the written authority of the Tribunal.

14. He relied on a folder of documents also provided to the tenant and marked as Exhibit R2.

15. Mr O’Leary appeared by video link for the tenants.

16. The tenants did not submit any documents specifically for the remitted hearing. Mr O’Leary sought to rely on the documents previously provided to the Tribunal in relation to the original hearing in RT 22/42569.

17. This was opposed by Mr Baskaran on the basis that at the Directions Hearing the Tribunal ordered the tenants to file with the Tribunal and serve on the respondent a copy of all documents on which the tenants intended to rely at the hearing by 5 June 2023. Mr Baskaran submitted that if the tenants sought to rely on those documents again, they should have been served again.

Extension of time to provide documents

18. Mr O’Leary then sought an extension of time to provide the documents at the hearing. This was opposed by Mr Baskaran because it would ‘not be according to the procedure and rule book of the Tribunal.’

19. Section 36 of the NCAT Act relevantly provides:

36 Guiding principle to be applied to practice and procedure

(1) The guiding principle for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

(2) The Tribunal must seek to give effect to the guiding principle when it—

(a) exercises any power given to it by this Act or the procedural rules …

20. Section 38 deals with the procedure of the Tribunal generally, and relevantly provides:

38 Procedure of Tribunal generally

…

(5) The Tribunal is to take such measures as are reasonably practicable—

…

(c) to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings.

…

21. Section 41 deals with extensions of time, and provides:

41 Extensions of time

(1) The Tribunal may, of its own motion or on application by any person, extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation.

(2) Such an application may be made even though the relevant period of time has expired.

22. In Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 the Appeal Panel said that the following factors are relevant when considering an extension of time application:

1. The length of the delay;

2. The reason for the delay;

3. The applicant’s prospects of success, that is usually whether the applicant has a fairly arguable case; and

4. The extent of any prejudice suffered by the respondent.

23. In this case, the length of the delay is significant. However, Mr O’Leary gave a reasonable explanation for the delay: he provided the documents to the Tribunal and to the respondent in October 2022 and did not seek to rely on any further documents.

24. I consider that the tenants have a fairly arguable case: the landlord does not deny that there was a leak, although whether the landlord responded to the leak with reasonable diligence is one issue of contention.

25. Any prejudice to the landlord if the extension was granted would be minimal. Mr Baskaran agreed that the landlord received the documents in around October 2022 and engaged with those documents at the original hearing.

26. Finally, if the Tribunal refused to extend time, this would work an injustice upon the tenants because substantial arguments about the landlord’s alleged breach will not be adequately considered.

27. In all of these circumstances the Tribunal determined to allow the tenants to rely on the documents which were marked as Exhibit A.

28. In fairness to the landlord, his documents filed for the original hearing were also admitted into evidence and marked as Exhibit R1. Mr O’Leary did not object.

29. Both Mr O’Leary and Mr Baskaran gave sworn oral evidence to the Tribunal and were given the opportunity ask each other questions.

Jurisdiction

30. The tenancy agreement between the parties is dated 13 November 2015. The tenants vacated on 7 September 2022. The Tribunal’s jurisdiction was not in contention at the hearing.

Relevant law

Compensation

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

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

33. In other words, for the tenants to obtain compensation, they must prove on the balance of probabilities that the landlord has breached its obligations under the under the Act, and that the landlord’s breach caused the damage or loss.

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

35. The tenant’s claim is outlined in a letter from his previous legal representative, the Homeless Persons Legal Service, to the landlord, dated 13 July 2022 (Exhibit A). It refers to the landlord’s obligations pursuant to sections 52 and 63 of the Act.

36. Therefore in determining the tenants’ claim for consideration, I have considered whether the landlord breached those 2 obligations.

Landlord’s obligation to provide premises fit for habitation

37. Section 52 of the Act provides relevantly:

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

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

…

(d) have adequate plumbing and drainage,…

38. The word ‘provide’ indicates that:

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

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

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

40. Section 63 of the Act relevantly states:

63. Landlord’s general obligation

(1) A landlord must provide and maintain the residential premises in a reasonable state of repair, having regard to the age of, rent payable for and prospective life of the premises.

(2) …

(3) A landlord is not in breach of the obligation to provide and maintain the residential premises in a reasonable state of repair if the state of disrepair is caused by the tenant’s breach of this Part.

(4) This section is a term of every residential tenancy agreement.

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

Onus of proof

42. It is well established that the tenant bears the onus of proof regarding the above provisions to the civil standard of proof, being more likely than not to have occurred on the balance of probabilities.

43. When proof of a fact is required, the Tribunal must feel an actual persuasion of the occurrence or existence of that fact before it can be found.

44. Actual persuasion is achieved where the affirmative of an allegation is made out to the reasonable satisfaction of the Tribunal. Reasonable satisfaction should not be produced by inexact proofs, indefinite testimony or indirect inferences: Warner v Hung, in the matter of Bellpac Pty Limited (Receivers and Managers Appointed) (In Liquidation) (No 2) [2011] FCA 1123 at [48], per Emmett J.

45. The above explanation was cited with approval by Hallen J in Pollock v NSW Trustee & Guardian [2022] NSWSC 923 at [74]-[75], who continued thus:

‘In Nguyen v Cosmopolitan Homes [2008] NSWCA 246, speaking with the concurrence of McColl and Bell JJA, McDougall J, similarly, had expressed the view, at [44]-[52], that proof on the balance of probabilities required a feeling of actual persuasion; that the event in question was more likely than not to have occurred; with “a probability in excess of 50%”. His Honour repeated that view in Ballard v Multiplex [2012] NSWSC 426 at [126].’

Was sewage leaking from the pipe?

46. Both parties agree that at various times during the tenancy, the pipe below the ensuite was leaking a liquid.

47. The tenants contend that the liquid leaking from the pipe was sewage. This is denied by the landlord.

48. In oral evidence Mr O’Leary stated that when the liquid pooled, it was yellow or brown in colour. He described the smell as ‘pungent’ and ‘disgusting’:

‘Everyone who came to our house commented on the smell. We stopped having people over and lost social contacts as a result.’

49. The tenants rely on a Mycological Assessment Report by Ridha Hussain of Sydney Scientific Services dated 8 July 2022.

50. I am satisfied that Mr Hussain is a suitably qualified and experienced expert.

51. His report is based on a visual inspection of the premises, including assessment of moisture content, temperature and humidity in the basement area below the leak, and collection of samples for analysis by a mycologist.

52. Mr O’Leary submitted that the report is evidence that the liquid leaking from the pipe was sewage.

53. The Tribunal asked Mr O’Leary to point out where the report evidences that the liquid is sewage.

54. Mr O’Leary highlighted an extract on page 4 of the report:

‘The Client informed SSS that there are two (2) areas within the property which have been noted as being a potential mycological hazard. These are:

AREA 1 – The basement area and in particular the ceiling lining.

The client informed SSS that it is understood as a result of prior assessment(s), the moisture and mould growth which has occurred in AREA 1 is caused by faulty plumbing systems from the ground floor bedroom ensuite which is directly above the basement area, causing sewerage leak which has led to elevated moisture levels and mould growth.’

55. I do not accept that this extract is an expert opinion confirming the liquid is sewage. It is simply Mr Hussain’s statement of information provided to him by the tenants.

56. Mr O’Leary also pointed to:

1. The references to ANSI/iiCRC S500 Standard for Professional Water Damage Restoration and ANSI/IICRC S520 Standard for Professional Mould Remediation (page 5); and

2. The remediation recommendations (page 8).

57. Neither of these references are evidence of the presence of sewage.

58. Pointing to the high levels of moisture and mould evidenced by the report, Mr O’Leary also submitted that:

‘Water doesn’t have mould in it.’

59. The Tribunal understands the factual inference Mr O’Leary is seeking to draw from this unsubstantiated submission is that the liquid was sewage. No such inference can be drawn from the report.

60. The Mycological Assessment Report does not contain a single reference to sewage and does not provide any supporting evidence for the tenants’ claim that the liquid leaking from the pipe was sewage.

61. In the absence of any other supporting evidence, I am not persuaded by Mr O’Leary’s oral evidence that the liquid was in fact sewage.

62. For the following further reasons, I am not satisfied that the liquid leaking from the pipe was sewage. I find that the liquid was likely water from a leaking valve connected to the toilet cistern:

1. Beginning on 29 March 2016, 7 routine inspections are documented. While some reports do note the leaking pipe, there is no reference to leaking sewage, or any offensive smell that might indicate sewage;

2. A Work Order from Same Day Hot Water Service dated 22 December 2021, (confirmed by an invoice dated 5 January 2022) states that a plumber attended the premises and relevantly:

‘Doesn’t appear to be sewer … Toilet downstairs leaking I replaced the inlet valve then checked meter was ok.’ (Exhibit R2, 75)

3. After the tenants left the premises, the ensuite was renovated. An email from Bill Sullivan of Sullo’s Handyman Services dated 6 January 2023 states:

‘Water leaking from the ensuite to the downstairs toilet area was caused from a broken inlet valve to the toilet system from upstairs. The leak was behind the wall and was replaced with a new inlet valve and pipes on the refurbishment of the ensuite. The sewage system was ok and there was no leakage coming from the sewer line as well as the shower outlet and hand basin.’ (Exhibit R2, 89-90)

Did the landlord fail to provide the premises fit for habitation?

63. The ingoing condition report relied on by the landlord notes that the ensuite toilet and cistern were undamaged at the start of the tenancy. The report makes no mention of a leaking pipe.

64. Mr O’Leary gave evidence that the tenants returned an annotated ingoing report to the landlord, but this was not before the Tribunal.

65. Mr O’Leary relies on a letter from his previous legal representative, the Homeless Persons Legal Service, to the landlord, dated 13 July 2022.

66. The letter refers to a leaking pipe beneath the ensuite bathroom which:

‘was broken and leaking onto the stairs beneath the bathroom since before our clients first moved in November 2015 …’ (Exhibit A).

67. In an email forwarded to the landlord by the agent on 21 May 2019, Mr O’Leary refers to the leaking pipe and states:

‘We really need this issue addressed as it’s actually something that was present prior to moving in.’ (Exhibit R1, 260)

68. However, this is not consistent with Mr O’Leary’s oral evidence before the Tribunal. Rather, Mr O’Leary’s oral evidence was that the tenants first noticed liquid dripping from the exposed pipe on the ceiling underneath the ensuite bathroom within the first 3 to 6 months of the tenancy commencing.

69. Mr O’Leary’s evidence conflicts with the letter in another respect.

70. While Mr O’Leary gave oral evidence that when the tenancy commenced, a sewage pipe was leaking in the back yard and was promptly repaired by the landlord when notified, the letter states that:

‘within 3 weeks of occupying the Premises, a cracked sewerage pipe was discovered in the backyard and that despite inspection by the plumber at the time, the pipe remains broken and leaks sewage into the backyard.’

71. Only the leaking pipe below the ensuite is the subject of this application. It was located above the stairs which the tenants would use to access the back yard.

72. Given the contradictions in Mr O’Leary’s evidence, I cannot be satisfied that the pipe was leaking at the commencement of the tenancy. Therefore, the tenants have failed to prove that the landlord breached his obligations pursuant to section 52 of the Act.

73. Even if I am wrong, and the pipe was leaking at the start of the tenancy, considering my finding that the liquid was not sewage but water, there is no evidence that the leak of water was so significant that it rendered the premises uninhabitable.

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

The first notification of a leak

74. Mr O’Leary gave oral evidence that the tenants ‘verbally contacted’ the landlord’s agent, Annie Chen, at the time they first noticed the leak, around mid-2016.

75. He said that the tenants pointed out the leak at every routine inspection; telephoned the agent on a regular basis; and sent emails:

‘I did communicate it on numerous occasions. I clearly said the toilet upstairs was leaking sewerage... I always had to push, push, push.’

76. Mr O’Leary’s oral evidence is not sufficient to persuade the Tribunal that the tenants first notified the landlord in md-2016 of the leak.

76. Given the inconsistences in his evidence, as outlined above, it is appropriate that the Tribunal place primary emphasis on the objective surrounding facts that are either undisputed or established by contemporaneous documents; the apparent logic of events; and the inherent probabilities and improbabilities of purported events: see In the Matter of Hillsea Pty Limited [2019] NSWSC 1152 at [16]-[21] and the authorities referred to therein.

77. There are no emails before the Tribunal about the leak prior to May 2019, as I detail below. There are no notes of telephone or face-to-face conversations between the parties about the leak.

78. The routine inspection report dated 29 March 2016 does not note any leaks (Exhibit R1, 170)

79. The routine inspection report dated 3 July 2017 identifies a ‘leaking toilet’, with no further details (Exhibit R1, 172)

80. I am not persuaded that the landlord had notification of the leak during 2016, 2017 and 2018.

81. On the basis of the routine inspection report dated 22 March 2019, I find that the landlord was first notified of the leaking pipe on 22 March 2019. The report states in relation to the ensuite:

‘Main issue is the leaking pipes of hrough (sic) the floor it self (sic) don’t know (as shown in the pictures of the ensuite). Definitely the problem needs to be attended by the professionals as soon as possible.’ (Exhibit R1, 173)

83. The photographs appear to show the exposed pipe on the ceiling above the stairs, the issue of this application.

84. In an email forwarded to the landlord by the agent on 21 May 2019, Mr O’Leary says:

‘We have communicated several times about the leaking in the room which has the back door and have also physically shown multiple agents and the owners father and personal handy man in which everyone had responded that it is unsafe and unhealthy.

There are literally fungi and mushrooms growing alongside black mould -Everyone is already aware of this and have taken photos.

We are yet to have an outcome and as of right now and we have had the pipes leaking for about 4 days straight to which the risk that is clearly visible to us as residents, the owner and owners personal handyman and multiple agents from the real estate is quite astonishing considering it is yet to be looked at by a professional such as a plumber.

Please can you arrange a plumber to come out as an emergency tomorrow Tuesday 21st May 2019.’ (Exhibit R1, 260)

85. The date Mr O’Leary actually sent that email is not noted.

86. Further emails evidence that the landlord’s agent sent a work order regarding the leak on 21 May 2019 (Exhibit R1, 262).

87. Based on correspondence from the landlord, I am satisfied that on 29 May 2019, the tenant Ms Trayner informed the agent that the leak had stopped and the plumber therefore was cancelled (Exhibit R1, 264, 265).

88. I find that after notification of the leak on 22 March 2019, the landlord failed to attend to the repair within a reasonable time. Notwithstanding the landlord’s acknowledgement of the significance of the leak, it took a further 2 months for the landlord to issue a work order, and only after insistent reminders by the tenants.

89. Therefore the landlord breached his obligations pursuant to section 63 of the Act.

Reoccurrence of the leak

90. The routine inspection reports dated 18 October 2019 and 6 July 2020 do not note any leaks and do not include photographs of the pipe.

91. Another routine inspection report was completed on 14 May 2021, and I find that the landlord was on notice of the recurrence of the leak on that date. The report states relevantly:

‘Ensuite toilet is leaking badly, course mold, (sic) Highly recommend this to be repair.’ (Exhibit R1, 190)

92. Mr Baskaran and Mr O’Leary agreed in oral evidence that at this time, the COVID pandemic was underway.

93. Text messages provided by the landlord show that the agent contacted tenant Ms Traynor on 4 June 2021 to arrange a time to conduct the repairs (Exhibit R2, 70).

94. There were further text exchanges over the next 2 weeks. It appears that the contractors were scheduled to attend the premises on 29 June 2021 but failed to attend. They were rescheduled for Monday 5 July 2021.

95. By this time Sydney was in COVID lockdown.

96. In a text dated 2 July 2021 Ms Traynor said:

‘It would be better to do the work after lock down.’

97. The landlord agreed to postpone the work (Exhibit R2, 73).

98. In oral evidence Mr O’Leary said that the tenants were concerned to comply with the lockdown restrictions and did not consider the necessary repairs an emergency. Additionally, Ms Traynor’s health condition required particular vigilance against the virus.

99. I am satisfied that after lockdown ended, a plumber attended the leak on 22 December 2021 (Exhibit R2, 75).

100. The leak was repaired on 5 January 2022 with the replacement of the inlet valve to the toilet (Exhibit R2, 74, 75). I accept Mr Baskaran’s evidence that, given the lay out of the house, the reference in the invoice to the ‘WC downstairs’ refers to the toilet in the ensuite.

101. I am not persuaded on the evidence before the Tribunal that, once notified of the reoccurrence of the leak, the landlord unreasonably delayed the process of repair.

102. In particular, given the parties’ agreement to postpone the repair, and the well-known difficulties securing tradesmen post lockdown, I cannot be satisfied that the repair should have been completed any time sooner than 5 January 2022.

Second reoccurrence of the leak

103. Based on the routine inspection report dated 23 February 2022, I find that the landlord was notified of the reoccurrence of the leak on that date. The report states:

‘Toilet leaking in downstairs area … toilet is leaking from back when flushed … This needs to bring reply ASAP. Due to mould growing on the floor and ceiling downstairs.’ (Exhibit R1, 215, 216)

104. During March, the landlord obtained two quotations to repair the bathroom (Exhibit R2, 78, 82)

105. Based on a letter from ‘Sam’, a contractor, the landlord arranged for a full renovation of the ensuite, including removal of the toilet and waterproofing, commencing 3 May 2022 (Exhibit R2, 83).

106. The landlord contends that when the contractor attended, Mr O’Leary became very angry. The letter states that the contractor felt threatened, unsafe and refused to undertake the work.

107. Mr O’Leary denied in oral evidence that he was abusive or threatening.

108. When questioned by the Tribunal Mr Baskaran said in evidence:

‘After the plumber left, we tried to get him back to do the job but he refused.’

109. The Tribunal asked Mr Baskaran whether the landlord attempted to engage another plumber? Mr Baskaran said that:

‘No. After COVID it was so difficult. The behaviour of the tenant didn’t help the situation. The tenant wouldn’t cooperate therefore the landlord gave the tenants a 90 day [termination] notice.’

110. An email from the landlord’s agent dated 17 May 2022 states relevantly:

‘The landlord is also concerned regarding the bathroom and the Tradesperson is not willing to come to the property in your presence. This may deteriorate the bathroom … The Landlord is considering to give you a 90 days notice to vacate the property …’ (Exhibit R2, 97,98)

111. The tenants vacated the premises on 7 September 2022.

112. According to Mr Baskaran, the ensuite and the leak were repaired in January 2023.

113. For the following reasons I find that the landlord breached his obligations pursuant to section 63 regarding the second reoccurrence of the leak because it was not repaired within a reasonable time:

1. The landlord acted with reasonable diligence to obtain quotations and arrange for the repairs in May 2022;

2. The Tribunal makes no finding regarding Mr O’Leary’s alleged behaviour towards the contractor. I note, however, that there is no evidence that the landlord or the contractor made any complaint to the police;

3. However, even if Mr O’Leary did behave aggressively as claimed, this does not absolve the landlord of his obligations pursuant to section 63;

4. Moreover, greater diligence was required of the landlord in attending to the repair, since it was the second reoccurrence of the leak, the last repair attempted only 6 weeks prior to the reoccurrence;

5. The landlord acknowledged that inaction would likely cause further deterioration to the bathroom;

6. On 18 May 2022 the landlord was on notice that the leak had caused Mr O’Leary to slip and fall and suffer injury (Exhibit R1, 118). Even if, as Mr Baskaran submitted, the landlord was sceptical of Mr O’Leary’s injury, the landlord was unreasonable not to investigate the reported injury and expedite the repair;

7. There were no reasonable efforts by the landlord to engage an alternative contractor; attempt to re-negotiate access with the tenants; or, if necessary, obtain access to the premises by applying for an order from the Tribunal.

Extension of time to lodge the application

114. As noted above, one of the issues for determination is whether the Tribunal should grant the tenants an extension of time to make their application for compensation.

115. The first issue for determination is the date the tenants made their application for compensation to the Tribunal.

When did the tenants make their application for compensation?

116. Although the application was filed on 22 September 2022, it did not include a claim for compensation.

117. Section 39 of the NCAT Act provides:

39 What constitutes an application

For the purposes of this Act, an application to the Tribunal includes a complaint, referral or other mechanism (however expressed) by means of which enabling legislation provides for a matter to be brought to the attention of the Tribunal for a decision.

118. In Walker v Northern Beaches Council [2022] NSWCATAD 8 at [68] the Tribunal explained the effect of section 39:

‘In other words, to be a valid application, the initiating process must comply with the requirements for that type of application imposed by the enabling legislation.’

119. Similarly, section 40 states that an application is to be made in the time and manner prescribed by enabling legislation or the procedural rules.

120. In this case, the enabling legislation is the Residential Tenancies Act 2010 (NSW).

121. The ‘manner’ for the making of an application for compensation or for the landlord’s breach is not prescribed in that Act.

122. Rule 23 of the Civil and Administrative Tribunal Rules 2014 (NSW) concerns the making of general applications. It relevantly provides:

23 GENERAL APPLICATIONS

(1) A general application must be –

(a) in or to the effect of the approved form, and

(b) duly completed, and

(c) lodged with the Registry, and

(d) accompanied by the applicable fee (if any) for the application.

123. Section 53 of the NCAT Act concerns irregularities in the commencement and conduct of proceedings. It relevantly provides:

53 Amendments and irregularities

….

(3) If a provision of this Act or the procedural rules is not complied with in relation to the commencement or conduct of proceedings, the failure to comply is to be treated as an irregularity and does not nullify the proceedings or any decision in the proceedings unless the Tribunal determines otherwise.

124. Based on the documents on file in RT 22/42560, it appears that at the first conciliation and group list hearing on 10 October 2022, the tenants presented the Tribunal with a typed ‘notice for compensation’ which had been emailed to the landlord on 7 October 2022 (Exhibit A).

125. The adjournment notes prepared by the Member at the conciliation and group list hearing indicate that it is likely the tenants raised their intention to pursue a compensation claim.

126. Therefore, I find that on 10 October 2022 the tenants made a ‘complaint’ and brought to the Tribunal’s attention their claim for compensation for decision, within the meaning of section 39 of the NCAT Act.

127. Although the application was not made using the prescribed procedure, this is an irregularity that does not nullify the application.

128. In other words, I find that the tenants made their application for compensation on 10 October 2022.

Should an extension of time be granted to make the application?

129. Section 190 of the Act deals with applications to the Tribunal that relate to breaches of residential tenancy agreements. It provides:

(1) A landlord or a tenant may apply to the Tribunal for an order in relation to a breach of a residential tenancy agreement prescribed by the regulations after the landlord or tenant becomes aware of the breach or within such other period as may be prescribed by the regulations.

(2) An application may be made –

(a) during or after the end of a residential tenancy agreement, and

(b) whether or not a termination notice has been given or a termination order made. …

130. The prescribed period for the making of an application under s 190(1) is found in regulation 39(9) of the Residential Tenancies Regulations 2019 (NSW). It is within 3 months of the applicant becoming aware of the breach.

131. The Tribunal has discretion pursuant to section 41 of the Civil and Administrative Tribunal Act 2013 (NSW) to extend the time in which an application may be made to the Tribunal under section 190(1) of the Act.

132. That discretion is unfettered but it must be exercised judicially having regard to established legal principle. I have already outlined above the relevant principles identified in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22.

133. For the following reasons I am satisfied that an extension of time should be granted regarding the second breach by the landlord of section 63:

1. The tenants were aware of the leak by 23 February 2022;

2. Until the contractor walked off the premises on 3 May 2022, the tenants had a reasonable expectation that the landlord was attending to the repairs;

3. Just over 5 months elapsed before the application was made to the Tribunal, 2 months out of time. This is not a significant delay;

4. Mr O'Leary gave evidence that the reason for the delay is that he did not understand the processes and was ‘petrified’ by the Tribunal. Referring to a claim against the landlord which was dismissed in the earlier proceedings, he said:

‘They owed us money and I felt that if I went to the Tribunal they would abscond from their responsibility.’

5. Ignorance of the law and legal processes is not an excuse. The tenants’ explanation for the delay is less than satisfactory.

6. There was no specific prejudice identified by the landlord should the application be accepted 2 months late;

7. Given my factual findings, including that the landlord did breach section 63, strict enforcement of the time limit would work an injustice to the tenant.

134. I am not satisfied that an extension of time should be granted regarding the first breach by the landlord of section 63:

1. The tenants became were aware of the breach at least by 22 March 2019;

2. The delay in bringing the application is therefore significant, being approximately 3 years and 4 months;

3. One of the reasons the tenants delayed making the application was the landlord’s repeated assurances that he would attend to the repair, as he had attended to other repair requests. However, given the length of the delay, the tenants could not reasonably have relied on the landlord’s assurance as a reason to defer their application for over 3 years.

4. The length of the delay outweighs the other factors identified above.

5. I am not satisfied it would be an injustice to the tenants not to allow an extension of time.

135. Therefore the tenant’s claim regarding the first breach is dismissed.

Assessment of compensation

136. The purpose of compensation is to put the injured party in the position in which they would have been in had the obligation been performed (or if the breach had not occurred), so far as money is capable of doing so.

137. In Commonwealth v Amann Aviation Pty Limited (1991) 174 CLR 64, the High Court stated that a decision-maker must do the best that they can to assess the damage and loss suffered by the applicant on the evidence available.

138. Similarly, in Pacorp Holdings Pty Ltd v Waller [2017] NSWCATAP 167, the Appeal Panel said:

‘provided that some evidence of loss or damage has been produced, difficulty of assessment is not a bar to the assessment of damages, and where precise evidence is not available, the court or tribunal must do the best it can.’

139. In this case, I take into consideration the following:

1. The tenants lived with the leak from around 23 February 2022 until they vacated in September, more than 6 months;

2. The leak was water, not sewage;

3. The area of the leak, falling on to the back stairs, was a relatively small part of the overall premises;

4. The area impacted by the leak was not habitable space – it was a passage way;

5. The back stairs were the primary, but not only, means of accessing the back yard;

6. Mould grew in the area of the leak as a result of the moisture;

7. I accept Mr O’Leary’s evidence that the amount of the leak varied, from a few drops to ‘half a cup’ if the toilet was flushed or the shower was running.

8. I am not persuaded that the tenants failed to mitigate their loss. I accept Mr O’Leary’s evidence that he did contact the landlord’s nominated emergency plumber, but to no avail. The last routine inspection report of 23 February 2022 notes:

‘it appears that the tenant is taking extremely good care of the home.’ (Exhibit R1, 215)

140. I accept Mr O’Leary’s evidence that the leak caused him to slip and fall in May 2022.

141. Mr Baskaran argued that Mr O’Leary’s evidence was not credible and the timing of the fall ‘too coincidental to be genuine’ (Exhibit R2, 12). I do not agree.

142. While there may be some discrepancy regarding the exact date of the fall, the evidence that Mr O’Leary did fall is supported by a medical certificate confirming his attendance at a medical centre on 20 May 2022 to investigate a possible fracture and soft tissue injury ‘following fall at his house in the context of slipping’ (Exhibit R2, 107). I do not regard it as remarkable that a patient would seek medical advice about lingering pain 9 days after a fall.

143. However, in assessing the amount of compensation, I do not take into account any physical injury that may have been incurred by Mr O’Leary:

1. There is no medical evidence confirming a diagnosis of injury; and

2. A claim for non-economic loss compensation such as pain and suffering cannot be maintained due to the limitation of section 16 of the Civil Liability Act 2002 (NSW): see also Roberts v NSW Aboriginal Housing Office [2017] NSWCATAP 9 at [78]-[80].

144. In all of these circumstances, the Tribunal concludes that the tenants are entitled to compensation in the amount of $1000.00.

Order

145. Because the landlord has paid the tenants $5,000.00 pursuant to the order of 8 December 2022, the Tribunal orders the tenants pay the landlord $4,000.00 on or before 2 October 2023.

146. The tenants’ application is otherwise dismissed.

**********

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: 29 September 2023