Polisena v Burls - [2016] SADC 53

District Court of South Australia
(Civil)
POLISENA v BURLS
[2016] SADC 53
Reasons for Decision of His Honour Judge Stretton (ex tempore)
30 May 2016
LANDLORD AND TENANT - RESIDENTIAL TENANCIES LEGISLATION
On the application of the tenant the Residential Tenancies Tribunal terminated a residential tenancy agreement and awarded the tenant compensation on account of the loss of amenity and use of the premises she rented from the landlord. That was said to have arisen as a result of damage to, and disrepair of the premises. The landlord appealed that decision to the District Court.
Held:
1.       The Residential Tenancies Tribunal failed to adequately record the proceedings held before it, or the evidence called before it, and failed to give sufficient reasons.
2.       In those circumstances it is not possible to determine either whether the hearing was properly conducted in accordance with the principles of natural justice, nor whether any error of law or fact was made.
3.       The decision of the Tribunal is therefore set aside, and the matter reheard.
4.       Upon full rehearing, the court finds that the side fence was damaged and unrepaired for a period of six months, and the ceiling of the kitchen dining area was damaged, unrepaired and in imminent danger of collapse for the 15 weeks prior to the end of the tenancy.
5.       The tenant is entitled to compensation assessed in the sum of $2,950.

POLISENA v BURLS
[2016] SADC 53
His Honour (ex tempore)
Background

This is an appeal concerning a determination of the Residential Tenancies Tribunal pursuant to the Residential Tenancies Act.
In March of 2015 the Residential Tenancies Tribunal (‘the Tribunal’) considered an application by Ms Naomi Burls, a tenant, seeking compensation in relation to a tenancy that she held with Ms Antonietta Polisena, a landlord, and she also sought the termination of that tenancy due to hardship.
The parties had entered into a residential agreement on around 15 August 2011 in relation to the premises at 39 Barnes Avenue, Magill SA 5072.
That was initially a 12 month tenancy which was annually renewed over the years. The final rent as noted by the Tribunal was $340 a week. The Tribunal noted that a security bond of $1,800 was originally paid by the tenant and lodged with the Commissioner of Consumer Affairs.
At the conclusion of that hearing the Tribunal made two orders: firstly it found that due to undue hardship the tenant’s application seeking termination of lease was granted, and it ordered that the tenancy terminate at 11 a.m. on Thursday, 19 March 2015.
The Tribunal also ordered that the landlord pay compensation to the tenant in the sum of $2,290. It did so on the following basis.
The Tribunal found that the back fence to the property fell down and was not repaired for a six month period resulting in the tenant being unable to allow her child to play unsupervised in the rear yard. The Tribunal assessed compensation at $50 a week for the six month period totalling $1,200. The Tribunal also found that for an 8 week period the kitchen/dining area of the premises was unsafe and not able to be fully used by the tenant, entitling the tenant to compensation at the rate of $110 per week totalling $880.
The Tribunal also found that the tenant incurred costs to hire a jack and timber struts to hold up the roof of that kitchen/dining area and a total of $210 was incurred. It is now common ground that that $210 has been repaid by the landlord and accordingly, that aspect of the matter is no longer in dispute.
Application for extension of time
The landlord has appealed against the award of compensation. That appeal is out of time. The appellant gave evidence in support of an application for extension of time.
Mr Polisena is the landlord’s son. He has conducted pretty much all of the dealings with both the agent and the tenant in this matter.
He gave evidence that there were some delays in receiving the order of the Tribunal.
The final decision of the Tribunal as amended was made on 23 March 2015 and although the residential tenancy file appears to indicate that the order was posted to both parties on that date, it is now common ground that the reasons were not received until 22 May 2015.[1] The notice of appeal was filed on 20 July 2015.
[1] Para.54 of the affidavit of Naomi Burls dated 1 March 2016.
Mr Polisena gave evidence that he was never informed by his agent of any limitation of time for the instigation of the appeal and said that when he realised negotiations for a settlement were unlikely to be successful he then filed the notice of appeal.
In all of the circumstances having regard to the length of the delay, the reason for the delay and the absence of any real prejudice to any party I allow an extension of time for the landlord to appeal.
The appeal
Whilst the nature of this appeal is a re-hearing, the court is unlikely to intervene unless there has been a failure by the Tribunal to properly consider the evidence, there is some error of law or fact, or it has failed to give adequate reasons for its decision.
I have reviewed the Residential Tenancy Tribunal file. Whilst the documentation relating to the tenancy together with some photographic and email material is on the file and therefore by inference was probably tendered to the Tribunal, regrettably the reasons of the Tribunal give no indication of what evidence was called before the Tribunal, do not express what legal principles were applied in coming to its decision, and give no reasons for the decision.
Further, it appears no transcript was kept, and there are in effect no notes by the Tribunal Member. It is therefore impossible to tell what evidence the Tribunal took into account, whether the Tribunal applied the correct principles, and whether accordingly the Tribunal misdirected itself as to any matters of fact or issues of law.
There is a fundamental requirement for any Tribunal which is considering important issues between parties, as indeed residential tenancies disputes so often involve, to in their reasons, at least in a brief summary way, record what evidence has been called, make findings of fact, and then apply the correct principles of law to those findings of fact in reaching its ultimate decision. All of those middle steps appear to have been omitted or at least not articulated by the Tribunal. It is therefore impossible to determine whether the hearing was properly conducted. Accordingly the decision cannot stand.
Accordingly, the decision of the Tribunal is quashed.
Rehearing
On the re-hearing of the matter the parties relied on the documentary material tendered before the Tribunal, and each provided further affidavit material and oral evidence.
I have regard to the affidavits of the landlord Ms Antonietta Polisena dated 29 February 2016 and 20 July 2015 and the affidavit of Mr Campbell dated 1 March 2016.
Mr Amerigo Polisena the son of the appellant gave oral evidence. He was the landlord’s primary witness, indicating that he managed the property on behalf of his mother and that all relevant contact with both his agent and the tenant were through him.
I also have regard to affidavits from the tenant Ms Burls dated 1 March 2016 and 15 January 2016. She also gave oral evidence and tendered a summary of argument.
The evidence
There is no dispute that the tenant moved into the property in August 2011 pursuant to a residential tenancy agreement, and moved out on 19 March 2015 pursuant to the order of the Tribunal made on 23 March 2015 that the tenancy terminate.
Ms Burls gave evidence as to the two primary issues which comprised her claim for compensation.
She gave evidence that on 18 September 2013 the fence between the front and back yards of her property was damaged due to strong winds and at least three panels of that fence were blown off. She advised the property manager, Sophie Gaiter, from Cocks Auld Real Estate of the damage to the fence. She advised that as a result the fence was constantly banging in the wind. The emails reflecting that correspondence were tendered. Ms Burls implemented some rudimentary repairs of her own by propping up the fence with poles and wood.
Ms Burls gave evidence that she couldn’t then let her daughter play unsupervised in the garden as there was now access to the front yard and hence the street through the broken fence. The fence was at risk of falling over, and there was a nearby halfway house frequented by people who were undergoing drug and alcohol rehabilitation. Accordingly she didn’t feel safe leaving her daughter unsupervised in the rear or front yard in those circumstances.
She made several phone calls over the next few months to try and get the landlord to repair the fence but nothing was done. Ms Burls gave evidence that on 3 February 2014 the fence was further damaged by more strong winds. Parts of the fence blew some 20 m away. Ms Burls contacted the agent again and sent pictures. This time the agent replied, indicating that the fence would be fixed in due course. After further emails the fence was finally fixed in mid March 2014.
Accordingly on Ms Burls’ evidence the fence to the rear yard was damaged and unrepaired between 18 September 2013 and mid March 2014, a six month period.
Ms Burls lived alone in that property with her young child. I have regard to Ms Burls’ evidence that her child was an outdoor child, often using the trampoline and the cubbyhouse in the backyard, and would often play in the rear yard. I accept this evidence and in all the circumstances find that for that period of six months, Ms Burl’s child’s ability to use and play in the rear yard was severely restricted.
The next aspect of the tenant’s claim was the condition of the kitchen/dining room. Ms Burls gave evidence that she noticed damage to the rear of the property in the kitchen/dining room and on or around 18 September 2013 emailed the agent to the effect that she believed there was termite or white ant damage to the back door of the property. She received an email reply from the agent that Adelaide Pest Control would contact her with a time to inspect the damage, and ultimately someone from that company attended on 30 September 2013.
An inspection was conducted both inside and outside of the house. Adelaide Pest Control proposed to immediately treat the property for white ants. Ms Burls allowed them to treat the property outside but, as her child and pets were present, said that she was unhappy without notice to allow internal treatment that day. She gave evidence that the contractor said that the white ants had long gone. Ms Burls also called her friend, a Mr Greg Eiffe, who was present at that time, to corroborate those statements by the contractor. He gave evidence that the contractor indicated that the white ants had long disappeared as the walls appeared to be dry.
Ms Burls gave evidence that was the last she heard from Adelaide Pest Control. She assumed that if they wanted to conduct further treatment they would contact her, and she did not recall any further contact following that attendance.
Ms Burls pointed out that attached to the landlord’s affidavit dated 20 July 2015 at tab 3, there is an email from Adelaide Pest Control dated 23 September 2013 to the agent, which was then relayed to the landlord, indicating that the tenant’s house is ‘Very badly damaged’ although the inspector could not detect any active termites on that day.
The 23 September 2013 report by Adelaide Pest Control was accompanied by a detailed description of the inspection which included in para.7
‘The following recommendations are made in accordance with AS3660 ... client to engage a licensed builder/tradesperson to inspect premises to determine the nature and extent of structural damage caused by termites and to replace or support termite-effected timbers.’
Under ‘Recommendations’, appears the notation ‘Rear area is very damaged’. Then there is an attached map giving a floor plan of the house indicating heavy damage to the rear door and windows.
Approximately a year later Ms Burls was advised of a further inspection to be conducted by Adelaide Pest Control. She gave evidence that on 7 December 2014 she had noticed that the horizontal beams in the kitchen area were falling down and that the back kitchen wall was bowing and the roof was beginning to sag. She provided photos of the state of the wall to the agent. She indicated she was very concerned at what she saw and suggested to the agent that it needed to be immediately addressed.
Ms Burls said that on 9 December 2014, the agent responded to the tenant that she would be seeking quotes for repairs as a matter of urgency. The tenant arranged an inspection of the back wall by a plumber several days later and was informed that there was only paint holding the wall up and that it needed urgent attention. The tenant said she informed the property manager of that. Later in December 2014 the tenant emailed the agent with more pictures explaining that the rear roof was worsening.
The tenant gave evidence that on 6 January 2015, the landlord or agent sent a builder, Terry Magryn, of Magryn & Associates Pty Ltd to inspect the property. She gave evidence that Mr Magryn expressed immediate concerns and recommended the tenant immediately hire a roof jack to prevent the kitchen ceiling collapsing.
She tendered at tab 4 of her affidavit a report from Mr Magryn which includes the observation:
‘I inspected the house at 39 Barnes Avenue Magill in January 2015. My report BR15001 refers. I noted at that inspection that there was significant termite damage in the supporting timber work around the windows at the north-west corner of the house. Damage noted was severe and the roof was in danger of collapse. It was recommended to the tenant at the time of the inspection that the roof be propped up immediately. She undertook to do so. The termite damage appeared to be old damage not recently occurring at the time. It is not known what type of cladding sheet in the kitchen area was in place but given the age of the premises it’s expected it was asbestos sheet.’
Mr Magryn also prepared a more detailed report dated 12 January 2015 addressed to the agent in which he repeated his findings and recommended a program of works to repair the damaged wall and window. He indicated that the work was urgent and should be completed within one month of the 12 January 2015 report date.
It is plain from the evidence that the damage to the property was severe and involved a significant risk of the kitchen/dining area entirely collapsing. The tenant emailed the agent on 9 January repeating her concerns. She gave evidence that on 22 January a Mr Murray of Murray Maintenance Services inspected the house at the behest of the landlord, advising the tenant that the work needed to be done immediately or the house should be reported to the Housing Improvement Board.
On 23 January 2015 the tenant emailed the agent again. The agent responded that the landlord was seeking a quote from another builder. On 25 January 2015, Mr Polisena, visited the property without notice bringing a person who he described as a friend and a builder to inspect the property. Mr Polisena told the tenant that his friend Steve the builder would be repairing the back wall, and that the work would begin in 48 hours.
She said that one of the men who attended with Mr Polisena said it would not be necessary to involve a qualified asbestos removalist. Ms Burls was told that she and her daughter could stay at the property while the repairs were taking place. The tenant had immediate concerns about that, particularly as she had been informed by Mr Magryn that there was likely asbestos in the back wall of the house.
After the men left the tenant became even more concerned about what was being proposed and the safety of her daughter.
The tenant corresponded with the agent voicing her concerns and the agent gave her a number of options. She was told she could either move out and stay with a friend or family, or she could remain while the work was done, or she could terminate the tenancy. The agent gave the tenant 36 hours notice to make that decision. The tenant said she felt under a huge amount of pressure. Accordingly on 28 January she responded that she would terminate the tenancy and find somewhere else to live. She vacated the property on 19 March 2015. The tenant said she found the whole process an ordeal and that she had suffered a significant emotional and physical toll.
She gave evidence that she had to take time off from work between 9 February and 28 March 2015, using her holiday and sick pay to cover that expense. She saw her GP Dr Say 13 times during that period and was referred to a psychologist, Ms Newton. The Court has received a report from each of those medical practitioners which support the tenant’s evidence.
Mr Polisena gave evidence on behalf of the landlord. He explained that he is the landlord’s son and that he has conducted the management of this property on behalf of his mother, retaining the rental management agents concerned. He was the one who would give them instructions in relation to the property and the tenant.
Mr Polisena told the court he drew up the various chronologies and put together the various bundles of documents which were tendered under cover of his mother’s affidavit. He supplemented that evidence in court.
Mr Polisena didn’t take issue with the overall time frame of the way the issues evolved with the property and now they were tackled.
He explained that there had been delays in the agent providing him with information.
He referred to the affidavit of Mr Campbell from Adelaide Pest Control, whereby Mr Campbell indicated that he did indeed attend the property and inspected it both internally and externally noting the extensive termite damage. He emphasised that Adelaide Pest Control treated the exterior of the property but were not permitted by the tenant to treat the interior on the day. He gave evidence that the contractor told him that the tenant would contact Adelaide Pest Control to indicate when they would have access to the property, and the contractor did not hear back from them. That is supported by Mr Campbell’s affidavit.
Mr Polisena said in evidence, and indeed argued in submissions, that had internal treatment occurred at the time, it may well be that there would have been no further damage to the back of the house and that now we can’t really say whether that might have slowed up the damage to the roof, or indeed meant that the roof wasn’t as badly damaged as it ultimately was.
There is only a little evidence about that issue before the court. The email from Adelaide Pest Control dated 23 September 2013, indicates that at that stage the home was very badly damaged at the rear, and that there were no active termites located at the time of that visit. There is supplementary evidence from the tenant and her witness, that at the subsequent inspection the consultant also said there was no evidence of termites being currently present and that the relevant wood was hard and dry, indicating that termites had not been there for some time.
In all of those circumstances, based albeit on limited evidence, it is likely that termite activity had ceased at the stage of the relevant inspections that occurred on the property.
I have had regard to all the evidence.
Factual conclusions
Having regard to all the evidence called in the matter, both by the landlord, the tenant, her independent witness and all the documentation tendered, I find proved on the balance of probabilities that the side fence was damaged in the way alleged by the tenant, and remained that way for the six-month period between September 2013 and its ultimate repair in March 2014. I find that the use of the rear yard by the tenant’s single young child was significantly impeded by that damage. The landlord was given notice of the damage but essentially did nothing for six months.

I have some sympathy for the landlord in that the landlord was, on the evidence before me, not well served by the agent who was slow in responding to issues raised by the tenant, lax in passing information onto the landlord and in some cases would provide a brief covering email and not attach important reports, such as the full report from Adelaide Pest Control.
Whilst one has sympathy for a landlord in those circumstances, the landlord is bound by the conduct of their agent and if the agent does the wrong thing or is negligent or does not pass information on, whilst that might give cause for complaint between the landlord and the agent, it is something that, as between the landlord and the tenant, the landlord is responsible for.
In relation to the roof issue, it is plain from the evidence of the tenant, all the tradesmen who attended, and the photographs, that because of historical damage to the timbers, the roof of the kitchen/dining area was in serious risk of collapsing from at least 7 December 2014.
The tenant notified the agent on that date, but nothing was done to repair that highly dangerous state of affairs until about 25 January 2015, when with 48 hours notice the landlord proposed to have a friend of his Steve, who was a builder commence repairing the property.
Given that it’s clear that asbestos was likely in the wall to be repaired, it was quite unrealistic and untenable to conceive that the tenant could reside in the house whilst repairs of a major nature such as this were undertaken.
Accordingly whilst I appreciate that at that stage the landlord was trying to fix the property, the tenant’s concerns were very real and very genuine. The tenant was given three options, one of which was the untenable option of staying while the work occurred. Another was moving out and staying with family or a friend, and the final one was to leave the property. Her decision to leave the property was entirely reasonable in those circumstances. The tenant took until 19 March to vacate due to difficulties in finding suitable replacement premises. She did find premises earlier than that, but due to problems with those premises was unable to move in
The Tribunal allowed eight weeks compensation for the loss of amenity caused by the risk that the roof would fall in, which on my calculations must have been for the period 7 December to around 7 February. I don’t understand why the Tribunal limited the period to 7 February. It may well be that the Tribunal felt that the tenant could have moved out earlier than she did. One of the consequences of the complete absence of articulated reasoning in the Tribunal’s written decision, is that it’s quite unclear why the Tribunal came to that view.
In my view, none of this was the tenant’s fault and that from 7 December to the day she left the premises the rear kitchen / dining area was unliveable due to the risk that the ceiling may fall in. The tenant was fully entitled to a property in reasonable, liveable condition from the moment she entered the tenancy through to the end of her lease. The tenant is entitled to compensation for the almost complete loss of amenity for her kitchen / dining area through to the date of her vacating the property, which is 19 March.
I will just ask my judicial assistant to calculate how many weeks there are from 7 December 2014 to 19 March 2015. That’s a period of 15 weeks.
In quantifying that loss of amenity I have regard to the use that the tenant and her child would make of the kitchen/dining area, which was a substantial part of the house. It is where a family would ordinarily expect to be able to eat all their meals. It was the area from which the tenant was able to supervise her child in the backyard or sit and look out over the garden whilst pursuing all the normal activities of daily life. It was the area where she would have guests and entertain them when they came over.
With the threat of the ceiling collapsing that whole area could not realistically be used. There was accordingly a very substantial diminution in the utility and enjoyment of the house over that period. In my view, the rate of compensation of $110 a week as assessed by the Tribunal was modest but appropriate. In the circumstances I will adopt that rate and accordingly 15 weeks at $110 is $1,650.
I turn now to the issue of the removalist. The tenant incurred the cost of a removalist and has now sought reimbursement of that cost. She made that claim in her affidavit but did not provide any evidence in support of that until very late in the re-hearing. I permitted her to reopen part way through her final address whereupon she tendered a handwritten receipt for $700 and gave brief further evidence to the effect that that was the cost she had to incur for removalists to move her out of the property at the time that she did.
The appellant protested at that course of action, indeed his submission he has had no opportunity to check or vet or respond to that claim is a valid one. And whilst I don’t reject the tenant’s evidence, I think that it would be unfair at this late time to allow the tenant to pursue that claim on appeal in light of all the circumstances.
I also have regard to the tenant’s claim for stress and her use of sick leave and annual leave for the time she took off work. That was not a claim pursued before the Tribunal, though the tenant indicated that the Tribunal Member informed the tenant that she could pursue that claim on appeal to this court.
In the tenant’s outline of argument she seeks that this court compensate her for that stress and those losses pursuant to s.42G(1) of the District Court Act. That section provides that the court may on appeal make any ancillary or consequential order that the court considers appropriate.
In my view that section is designed to cover supplementary, ancillary and other matters that allow for the efficacious resolution of an appeal.
In my view whilst I understand the tenant’s situation personally, I don’t think that she can make a new and substantive claim of this type pursuant to section 42G(1) of the District Court Act.
Now, I turn to what is in effect a counterclaim whereupon the landlord has sought a contribution from the tenant for various of the costs of repair over time. There is no basis for any such claim and that claim is dismissed.
Conclusion
Accordingly, in summary, on detailed review and re-hearing of the plaintiff’s original claim the court allows the claim for compensation in relation to the fence at $50 per week for a six month period, which is in fact $1,300. Twenty six weeks by $50 is $1,300 not the $1,200 that the Tribunal Member seemed to arrive at. And the court allows $1,650 for the very substantial diminution of amenity that the tenant suffered in relation to the kitchen/dining area of the house.
That totals a sum of $2,950.
Accordingly, judgment will be entered for the tenant in the sum of $2,950.