Saglik v NSW Land and Housing Corporation; NSW Land and Housing Corporation v Pingola Pty Ltd

[2025] NSWCATCD 121

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Saglik v NSW Land and Housing Corporation; NSW Land and Housing Corporation v Pingola Pty Ltd [2025] NSWCATCD 121

Hearing dates:

1 July 2025

Date of orders:

28 August 2025

Decision date:

28 August 2025

Jurisdiction:

Consumer and Commercial Division

Before:

JA Rose, Senior Member

Decision:

The claims in proceedings 2024/00454264 and 2025/00076180 are dismissed.

Catchwords:

LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Rights and obligations of landlords and tenants — landlord’s obligations to maintain premises in a reasonable state of repair

LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Rights and obligations of landlords and tenants — tenants’ right to reasonable quiet enjoyment of rented premises

LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Rent — Excessive rent

Legislation Cited:

Residential Tenancies Act 2010 (NSW)

Cases Cited:

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

Greco v NSW Land & Housing Corporation [2021] NSWCATCD 25

Makowska v St George Community Housing Ltd [2020] NSWCATAP 159

McC v Director of Housing [2009] VCAT 2748

Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313

Roberts v NSW Aboriginal Housing Office [2017] NSWCATAP 9

Sewell v Zvirblis [2022] NSWCATAP 337

Southwark LBC v Tanner [2001] 1 AC 1

Warner v Hung (No 2) (2011) 297 ALR 56; [2011] FCA 1123

Texts Cited:

Nil

Category:

Principal judgment

Parties:

In proceeding 2024/454264:
Fatmagul Saglik (Applicant)
NSW Land and Housing Corporation (Respondent)

In proceeding 2025/76180:
NSW Land and Housing Corporation (Applicant)
Pingola Pty Ltd (Respondent)

Representation:

In proceeding 2024/454264:
Ms F Saglik, in person (Applicant)
Ms K Ratsabouth, authorised officer (Respondent)

In proceeding 2025/76180:
Ms K Ratsabouth, authorised officer (Applicant)
No appearance (Respondent)

File Number(s):

2024/00454264 and 2025/00076180

Publication restriction:

Nil

REASONS FOR DECISION

Introduction and procedural history

1. Pingola Pty Ltd is the owner of a strata-titled residential townhouse at [address], NSW (the premises). In or before May 2020, Pingola let the premises to NSW Land & Housing Corporation (NSWLHC) under a residential tenancy agreement (the head tenancy agreement). NSWLHC then sub-let the premises to Ms Saglik under a separate residential tenancy agreement, dated 6 May 2020 (the subtenancy agreement). Ms Saglik continues to occupy the premises under that arrangement.

2. Ms Saglik complains that the premises have become infested with bird lice since about October 2024. That complaint has spawned two applications in the Tribunal:

1. An application by Ms Saglik against her landlord, NSWLHC, which she lodged with the Tribunal on 5 December 2024 (Ms Saglik’s application) – which (as amended) alleges that the bird lice has infested her family’s clothing, shoes, cars, carpets, beds and everywhere throughout the premises and seeks orders that NSWLHC:

1. address and resolve the infestation at the premises, by hiring people to undertake a deep cleaning of the premises and Ms Saglik’s furniture;

2. carry out the necessary repairs in the premises, to ensure that the premises is in good condition; and

3. pay compensation of $15,000 to Ms Saglik, covering personal property items Ms Saglik alleged were infested with fleas, and additional electricity and pest control costs that she believed she had incurred in dealing with the bird lice problems.

2. A cross-application by NSWLHC against Pingola, which was filed on 26 February 2025 (NSWLHC’s application), seeking orders against Pingola under s 187(1) of the Residential Tenancies Act 2010 (NSW) (the RT Act) and the head tenancy agreement, that Pingola carry out the repair work sought by Ms Saglik to remove the bird lice and that Pingola pay NSWLHC compensation of $15,000 to cover the loss and damage claimed by Ms Saglik.

3. I heard both matters in Parramatta on 1 July 2025, reserving my decision at the end of the hearing. For the reasons that I set out below, I have decided that both claims must be dismissed on the ground that the Tribunal is not satisfied to the civil standard (being the balance of probabilities) on the material put before the Tribunal that there are grounds to make the orders sought in either claim.

Appearances

4. Ms Saglik appeared for herself at the hearing, while NSWLHC was represented by its authorised officer, Ms Ratsabouth. There was no appearance by or on behalf of Pingola at the hearing.

5. The Tribunal file for the NSWLHC application contains a copy of a notice of hearing dated 23 May 2025 that was issued by the Registry and addressed to Pingola in the care of its managing agents, Laing & Simmons real estate at Merrylands (the managing agents), advising Pingola of the date time and place of the hearing. On reviewing that file at the hearing, I was satisfied that the notice of hearing was sent to Pingola’s managing agents by email; that the transmission of the hearing notice did not fail; and that Pingola had been given adequate notice of the hearing.

6. That conclusion was confirmed when Ms Ratsabouth read to the Tribunal an email from the managing agents, stating that (in summary) Pingola would not appear at the hearing and that it was happy for the hearing to proceed in its absence.

7. In those circumstances, I was satisfied that the justice of the case required that the hearing of the two matters proceed in the absence of Pingola, having regard to the fact that (a) both Ms Saglik and NSWLHC had lodged documents in accordance with the Tribunal’s directions and had appeared at the hearing ready to present their respective cases to the Tribunal; (b) that neither of those parties could obtain the relief they sought without an order of the Tribunal and (c) that both those parties would have been seriously prejudiced if the matter was not heard on that day. Consequently, I proceeded to hear both matters.

The hearing

8. The hearing proceeded in the usual manner: after the parties present at the hearing made brief opening statements they were given opportunities to present the evidence that they relied on at the hearing and to question the other party’s witnesses, before making their arguments to the Tribunal and responding to the arguments made against them. I am satisfied that all parties had adequate opportunities to present their respective cases to the Tribunal.

9. In opening her case, Ms Saglik stated that, while the tenancy began five years ago, the infestation of bird lice was only noticed in October 2024. She asserted that the infestation came from pigeons that were nesting in the rainwater head at the top of the downpipe on the garage wall and spread from there into the house. Despite her best efforts, including calling pest controllers to spray the premises twice, she has been unable to control the bird lice. She seeks repair orders to compel NSWLHC to remove the lice from the premises and to seal the premises against further infestations, together with a rent reduction of $185 per week and/or compensation for economic and non-economic losses, asserting that NSWLHC has failed to maintain the premises in good repair and has interfered unreasonably with her quiet enjoyment of the premises.

10. NSWLHC asserted in its opening address that it was not notified of the infestation until November 2024, after Ms Saglik returned from overseas. Nevertheless, it asserted, this was an issue for Pingola and/or the owners corporation, who it says sprayed the premises and undertook the relevant repairs in December 2024. It further asserted that what Ms Saglik now claims is bird lice is actually just fluff. Consequently, NSWLHC denied that it had breached the repair obligation or the right to quiet enjoyment under the tenancy agreement, or that Ms Saglik is entitled to any of the orders sought against it.

11. NSWLHC also asserted that it gave Ms Saglik alternative accommodation for 2-3 nights while the repairs were undertaken, but Ms Saglik only stayed the one night before returning to the premises. Ms Saglik asserted in reply that she could not use that alternative accommodation after one night because the motel concerned was infested with bed bugs.

The burden of proof

12. In each proceeding, the party seeking relief carries the burden of satisfying the Tribunal of the facts that, in the absence of other facts being proved, would justify the grant of the relief they seek on the civil standard. In short compass, this means that:

1. the applicant in each proceeding must affirmatively persuade the Tribunal of the facts that support their respective claims on the balance of probabilities; and

2. the respondent in each proceeding must also persuade the Tribunal of any facts that support any positive defences that they raise in respect of the claims made against them.

13. 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. Actual persuasion is achieved where the affirmative of an allegation is made out to the reasonable satisfaction of the Tribunal. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, and the gravity of the consequences flowing from a particular finding are considerations that must affect whether the fact has been proved to the Tribunal’s reasonable satisfaction.

14. As can be concluded from this analysis, reasonable satisfaction should not be produced by inexact proofs, indefinite testimony or indirect inferences: see Warner v Hung (No 2) (2011) 297 ALR 56; [2011] FCA 1123 at [48]. It needs to be founded on the available evidence, together with any inferences that can reasonably be drawn from the evidence.

The applicable law

15. Section 44(1)(b) of the RT Act gives the Tribunal power to make an order, on the application of a tenant, finding that the rent payable under a residential tenancy agreement is excessive and to determine that the rent payable by the tenant should not exceed a nominated amount for a period of up to 12 months, where the landlord has reduced or withdrawn goods, services or facilities that are provided with the premises. That section provides (relevantly, bolding in original, my underlining):

44 Tenant’s remedies for excessive rent

(1)    Excessive rent orders The Tribunal may, on the application of a tenant, make any of the following orders--

(a)    …

(b)    an order that rent payable under an existing or proposed residential tenancy agreement is excessive, having regard to the reduction or withdrawal by the landlord of any goods, services or facilities provided with the residential premises and that, from a specified day, the rent for residential premises must not exceed a specified amount.

(2)    …

(3)    Applications on withdrawal of goods or services A tenant may, before the end of a tenancy, make an application that the rent is excessive, having regard to the reduction or withdrawal of any goods, services or facilities provided with the residential premises, even if those goods, services or facilities were provided under a separate or a previous contract, agreement or arrangement.

(4)    Determination of excessive rent For the purposes of making an order under this section, the Tribunal may declare that amounts payable under a contract, agreement or arrangement under which goods, services or facilities are provided to the tenant are rent.

(5)    The Tribunal may have regard to the following in determining whether … rent is excessive--

(a)    the general market level of rents for comparable premises in the locality or a similar locality,

(b)    the landlord’s outgoings under the residential tenancy agreement or proposed agreement,

(c)    any fittings, appliances or other goods, services or facilities provided with the residential premises,

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

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

(f)    any work done to the residential premises by or on behalf of the tenant,

(g)    when the last increase occurred,

(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).

(6)    Effect of excessive rent order An order by the Tribunal specifying a maximum amount of rent--

(a)    has effect for the period (of not more than 12 months) specified by the Tribunal, and

(b)    binds only the landlord and tenant under the residential tenancy agreement or proposed residential tenancy agreement under which the rent is payable.

Note : A tenant under a social housing tenancy agreement may also apply for an order that rent is excessive if a rent rebate is cancelled (see section 141(1)).

16. Section 50 provides for a tenant’s right to live in rented premises without unreasonable interference from the landlord or anyone acting on their behalf. The section provides:

50 Tenant’s right to quiet enjoyment

(1)    A tenant is entitled to quiet enjoyment of the residential premises without interruption by the landlord or any person claiming by, through or under the landlord or having superior title (such as a head landlord) to that of the landlord.

(2)    A landlord or landlord’s agent must not interfere with, or cause or permit any interference with, the reasonable peace, comfort or privacy of the tenant in using the residential premises.

: Maximum penalty--10 penalty units.

(3)    A landlord or landlord’s agent must take all reasonable steps to ensure that the landlord’s other neighbouring tenants do not interfere with the reasonable peace, comfort or privacy of the tenant in using the residential premises.

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

17. Section 51 sets out the general obligations for the use of rental premises by a tenant. It provides (relevantly, my underlining):

51 Use of premises by tenant

(1)    …

(2)   A tenant must … --

(a)   keep the residential premises in a reasonable state of cleanliness, having regard to the condition of the premises at the commencement of the tenancy,

(b)   notify the landlord of any damage to the residential premises as soon as practicable after becoming aware of the damage.

(3)   …

(4)   In this section--

“residential premises” includes everything provided with the residential premises (whether under the residential tenancy agreement or not) for use by the tenant.

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

18. Section 63 sets out a landlord’s general repair obligations under a residential tenancy agreement. It provides (my underlining):

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)    A landlord’s obligation to provide and maintain the residential premises in a reasonable state of repair applies even though the tenant had notice of the state of disrepair before entering into occupation of the residential premises.

(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.

19. Section 65 empowers the Tribunal to make orders compelling a landlord to undertake repairs to the rented property, providing (relevantly, my underlining):

65 Tenants’ remedies for repairs--Tribunal orders

(1)   Orders for which tenant may apply The Tribunal may, on application by a tenant, make any of the following orders--

(a)   an order that the landlord carry out specified repairs,

(b).(c)   …

(2)   Orders for repairs The Tribunal may make an order that the landlord carry out specified repairs only if it determines that the landlord has breached the obligation under this Act to 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.

(3)   In deciding whether to make an order under this section, the Tribunal--

(a)   …

(b)   may take into consideration whether the landlord failed to act with reasonable diligence to have the repair carried out.

(3A)   The Tribunal must not determine that a landlord has breached the obligation unless it is satisfied that the landlord had notice of the need for the repair or ought reasonably to have known of the need for the repair.

(4)-(6)   …

20. Additionally, section 187(1)(d) and (2) empower the Tribunal to order a party to pay compensation to another party for breach of a residential tenancy agreement, including for breach of the landlord’s obligation to provide and maintain residential premises in a reasonable state of repair or the landlord’s breach of the tenant’s right to reasonable quiet enjoyment of the premises.

The evidence

(a)   Ms Saglik’s evidence

21. Ms Saglik relied on four bundles of documents, being: the bundles that she had lodged with the Tribunal in respect of her application on 12 February 2025 (exhibit T1), 29 April 2025 (exhibit T2) and 6 May 2025 (exhibit T3), as well as a further copy of the statement from a Yildiz Yenilmez dated 15 January 2025 that was in exhibit T1 which she handed up at the hearing (exhibit T4) and some screenshots taken from a mobile phone (exhibit T5).

22. NSWLHC did not object to any of those documents being used in evidence. It also did not seek to cross-examine the makers of any of the statements or reports that were included in Ms Saglik’s evidence. Instead, it argued that each of those documents should be given low weight in the Tribunal’s determination because they were not sworn evidence.

23. Exhibit T1 contained an unsworn statement given by Yildiz Yenilmez (a friend of Ms Saglik), who said she visited Ms Saglik at the premises on 10 November 2024. She reported that when Ms Saglik opened the door:

As soon as I saw her, I noticed she was crying, appeared stressed and depressed, and had red dots all over her skin. Concerned, I immediately asked her what had happened. While we were standing at the front door, she explained her situation to me.

However, I chose not to enter her home because I was concerned about the possibility of getting infected with fleas. After speaking briefly, I returned home.

As Ms Yenilmez’ statement was not sworn and she was not cross-examined on her evidence, I give the statement low weight in coming to my decision.

24. Ms Saglik also produced another pair of letters from long-standing friends, who commented on Ms Saglik’s predicament in largely-identical terms, with both letters stating:

… I am a close friend of [Ms Saglik]. We have been friends for over [15 or 18] years, and during that time, I have never seen her as distressed and unhappy as she has been lately.

[Ms Saglik] has been enduring an extremely difficult time due to a persistent flea infestation in her home. She has taken numerous steps to address this issue, including hiring pest control services, purchasing special sprays or traps, and deep cleaning regularly, but despite her efforts, the infestation remains unresolved.

When I went to visit her, I was unable to enter her home out of fear of being bitten or bringing fleas back with me. I witnessed her suffering firsthand; her arms and legs were covered in itchy, sore bites, and she was clearly in pain. While explaining her situation to me, she experienced an anxiety attack, and her emotional state was deeply troubling.

[Ms Saglik] is an exceptionally clean and responsible person. She takes great pride in maintaining her home, performing regular cleaning throughout the week. In all the years I have visited her, her house has always been immaculate. The situation is entirely out of her control, yet it has taken a severe toll on her life.

The infestation has prevented her from inviting friends and family over, isolating her socially. It has also disrupted her daily life and emotional well-being. She has experienced heightened anxiety, difficulty sleeping, and extreme frustration.

I am submitting this letter to shed light on [Ms Saglik’s], and I hope that my testimony underscores the urgency and severity of her case.

Thank you for your time and understanding.

Because of the nearly-identical form of those letters and the fact that neither person has signed the letters by their own hand, I have significant doubts about whether that evidence is truly the work of the persons named on each letter. There is a distinct possibility that the letters have been written for those people, or that the letters have been produced through a collaboration. Further, neither of those letters have been sworn and the persons named on each letter did not give evidence directly to the Tribunal. Because of those matters and the general terms in which both letters are written, I do not find those letters to be particularly probative of the issues before the Tribunal. I therefore give those reports very low weight in coming to my decision.

25. Ms Saglik also produced two bundles of photographs. One bundle showed a large number of red and inflamed areas on the arms and legs of someone, presumably Ms Saglik. The other bundle showed what appeared to be minor cracks or similar defects in internal walls of an unspecified building. Both bundles were unverified and undated, reducing their usefulness to the Tribunal in deciding the matter.

(b)   NSWLHC’s evidence

26. NSWLHC relied on the bundle of documents that it had lodged on 3 March 2025 in respect of Ms Saglik’s application (exhibit L1), together with electronic copies of some photographs and emails that were handed up at the hearing (exhibit L2).

27. Ms Saglik did not object to any of those documents being used as evidence in the hearing. She also did not seek to cross-examine any of NSWLHC’s witnesses on their evidence.

(c)   Pingola’s evidence

28. Pingola did not submit any documents for the Tribunal to consider.

Jurisdiction

29. None of the parties objected to the Tribunal having jurisdiction to hear or determine the claims in either of the proceedings. Nevertheless, I am also satisfied on the evidence produced to the Tribunal that there are residential tenancy agreements in place between Ms Saglik and NSWLHC and between NSWLHC and Pingola, and that the Tribunal has jurisdiction to hear and determine the claims in both proceedings under the RT Act.

30. The amounts claimed in both proceedings are also within the Tribunal’s monetary jurisdiction under that Act.

The background facts

31. Having weighed and considered the evidence produced by both parties, I am satisfied on the balance of probabilities that the background facts of the matter are as follows:

1. The premises is a three-storey residential townhouse in a strata titled townhouse complex at [address], NSW. No evidence was led to establish the age of the townhouse with any certainty, however the sequential strata plan registration number that has been given to the plan and the photographic evidence of the building before the Tribunal leads me to conclude that the premises was likely constructed in the early to mid-1990’s.

2. The premises included an inbuilt garage. Part of the garage was covered by the upper floors of the building. The remaining part of the garage roof drained to a rectangular rainwater head on the outside of the building, which was situated at the top of a stormwater downpipe. The top of the rainwater head was open to the sky. The parties agree that birds nested in the top of that rainwater head, as shown in photographs produced by the tenant.

3. While the head tenancy agreement between Pingola and NSWLHC was not produced in evidence, I am satisfied that such an agreement exists and that it contains the terms prescribed in the standard form residential tenancy agreement under the RT Act. Those terms include:

1. Pingola is required to keep the premises in a reasonable state of repair, considering the age of, the rent paid for and the prospective life of the premises.

2. NSWLHC is required to keep the premises reasonably clean, and must notify Pingola as soon as practicable of any damage to the premises.

4. Ms Saglik and NSWLHC entered into the subtenancy agreement on 6 May 2020, which generally complied with the standard form residential tenancy agreement prescribed under the RT Act and also contained additional terms and special conditions. The terms of that subtenancy agreement include:

1. The initial fixed term of the agreement was for two years starting on 11 May 2020 and ending on 8 May 2022, following which Ms Saglik is permitted to occupy the premises on a periodic tenancy that was generally on the same terms as the original agreement.

2. Ms Saglik is required to pay rent at the rate of $630 per week, although NSWLHC may agree to subsidise that rent from time to time, as set out in the agreement.

3. Ms Saglik is entitled to quiet enjoyment of the premises, in the same terms as section 50 of the RT Act, described above (clause 12).

4. NSWLHC is required to keep the premises in a reasonable state of repair, considering the age of, the rent paid for and the prospective life of the premises (clause 16.3).

5. Ms Saglik is required to keep the premises reasonably clean (clause 14.1) and must notify NSWLHC as soon as practicable of any damage to the premises (clause 14.2).

5. At all material times, Ms Saglik has resided at the premises with her two daughters, now aged 25 and 18 years old. She presently receives a rental subsidy that reduces her total weekly rent.

6. The evidence establishes that Ms Saglik has suffered from eczema since at least early November 2008. This was reported in the medical evidence produced by Ms Saglik.

7. On 23 October 2024, Ms Saglik was admitted to the Emergency Department at Auburn Hospital, where she was “managed … for pruritic rash [that is, itching skin and a visible rash] from flea bites” over her legs, arms, trunk, back and abdomen. In the history that she gave to the hospital staff, she said that she had a bird nest outside her window which was removed and that she had noticed fleas in her carpet in her living room, which she had been spraying with insect repellent but that was not working and she felt things biting her when she was in the living room.

8. Ms Saglik engaged Pest-Proof Solutions on about 25 October 2024, to undertake a “general pest control + flea treatment” at the premises. Pest-Proof Solutions carried out a follow-up treatment at the premises on 9 November 2024.

9. NSWLHC conducted a client service visit to the premises on 6 November 2024, at which time they took a bundle of about 11 photographs to record the condition of the premises. The report from that visit noted that all rooms in the property had been inspected and that there was no sign of any damage to the premises (also noting that Ms Saglik’s daughters were sleeping in their bedroom at the time of the visit). It also recorded that Ms Saglik did not raise any maintenance concerns or other issues at that time, such as the presence of bird lice in the premises. The photographs included in the report also did not show any evidence of any bird lice problem at the premises. I would have expected that Ms Saglik would have raised it with the inspecting officer at that time if there had been a problem with bird lice at the premises at this time, however the first complaint to the landlord that is in evidence did not occur for several more weeks, to which I now turn.

10. On or shortly before 26 November 2024, Ms Saglik made contact with NSWLHC’s Maintenance Response Centre by telephone, raising concerns about her wellbeing because of the birds nesting in the roof and being bitten by fleas and mites that she believed had been caused by the birds.

11. On 29 November 2024, Ms Saglik made a second maintenance request to NSWLHC’s Maintenance Response Centre using its online portal, with the report noting:

Birds are nesting and fleas are throughout the property, this is a constant issue and needs to be actioned. Tenan has sprayed …
over and over again in her property to no avail. Birds need …
removed area where they are nesting needs to be closed off to prevent them from coming back. House needs to be flea bombed.

The same day (29 November), Dr. Suleiman Demdl issued a medical certificate addressed to NSWLHC, setting out Ms Saglik’s various medical conditions and reporting that Ms Saglik:

… Is currently suffering from a bird lice infestation at her residence which she hasn’t [been] able to get rid of despite pesticiding the property. She is suffering from persistent severe itching and rash as a reaction to the lice. This is also flaring up her pre-existing allergic eczema [which the certificate noted was active 3 November 2008]

NSWLHC then arranged two nights’ temporary accommodation for Ms Saglik in a motel. Ms Saglik stayed only one night in the motel before returning to the premises, complaining that the motel unit was infested with bed bugs.

12. On 2 December, Pingola’s managing agents noted that the owners corporation had issued a work order for the birds nest issue, asking NSWLHC to advise Ms Saglik that the trades will attend to her soon and “to be patient”.

13. On 3 December, Ms Saglik sent an email to Pingola’s managing agents, writing:

I am writing to you about the bird infestation in my home coming from pigeons on my roof. I have been telling the people that come to my house for inspection plus even showed them. But I got totally ignored by your company and housing. Now my house is infested with bird fleas inside and out. It’s out of control and has infested in our furniture carpet tiles, clothing and our beds. It’s been 2 months I have [been] dealing with this on my own and have called out pest control twice on my own cost and have spent so much money on insecticide sprays. Even the housing and I have told you by emails and you still haven’t done anything. Me and my family is very exhausted tired and bitten all over. I have severe allergy to mites and my health has gone so bad. It’s in our beds and every night I have to steam iron my clothing’s and beddings. So whatever we do in our home is not working till you remove the bird nest and treat the whole house. I have taken this further to the tenants Tribunal and ncat. This is an urgent matter pls do what supposed to be done by your end.

The message was accompanied by digital copies of a video recording and a photograph, but the evidence does not disclose what was shown in those files.

14. The managing agents acknowledged that email the same afternoon, apologising “for the challenges you and your family have been facing and any delays in addressing the issue to date”, adding:

… To address the matter promptly:

1.   Inspection and Nest Removal: We have arrange[d] for a qualified pest control specialist to inspect your property and remove any bird nests on the roof immediately.

2.   House Treatment: Following the nest removal, the property will be treated to address the flea infestation both inside and outside.

Ms Saglik sent a further email to the managing agents the next morning, seeking a reimbursement of the amount that she has spent in dealing with the flea issue to that point and a rent reduction, to which the managing agents referred her to NSWLHC.

15. Pingola’s pest controller visited the premises on 5 December – just 9 days after Ms Saglik made her 26 November complaint to NSWLHC. After they left, Ms Saglik sent further emails to NSWLHC and to Pingola’s managing agents, writing in each case:

… the pesticide professional came in my home today did the roofing a quick spray and lightly sprayed indoors leaving me with the bird flea infestation all in our cupboards under and in furniture. I’m not happy with how they treated the house. They didn’t spray the windows or vertical blinds. The air con is infested aswell. They said it’s coming from there too. But didn’t take any action about it.

Pls I am in desperate help.

I can’t open my windows for fresh air I have to have the air con on constantly and I’m still getting bitten and our beds are still infested.

I have attached a video on how they sprayed it. The shiny areas are only the places they sprayed.

That evening, she sent another email to NSWLHC which attached a large bundle of photographic images and stated:

I have attached pictures showing the extent of the flea infestation in my home. They are in our beds, cupboards, clothing and shoes. I understand this is a challenging situation, and I am sending you these attachments as proof of how infested everything is.

The last picture was taken today after a pest control professional came and very lightly sprayed only the corners of my house, as if treating cockroaches instead of fleas. I informed them that my whole house is infested and asked them to spray everywhere, but they declined.

I am concerned about the effectiveness of the treatment, and I would appreciate assistance in deep cleaning and properly spraying the entire house. The professional did not spray the windows, screens, outdoor walls, or covers Could we discuss a more thorough approach to address this issue?

Thank you for your attention to this matter.

16. Ms Saglik sent another email to the managing agents the next day (6 December), attaching a video recording and writing:

This is the video I took this morning showing the fleas on my bed. The pesticide men said they can be entering from the air conditioning. I still cannot open my windows due to the pest control not spraying them and the fly screens.

Can you get it cleaned asap. I really want the fleas to go. My legs are bitten again and very extreme.

17. Ms Saglik sent a further email to Pingola’s managing agents on 9 December, writing:

I’m still waiting for an answer my house is bird flea infested, and you are treating it like I’ve got cockroaches. I’m still getting flea bites and they are ending up in our beds. We still can’t open the windows because every time I do I feel the fleas crawling on my legs and start biting me. The house must be bombed and get rid of the eggs and the growth of the fleas. The pest control said they can be entering from the [ducted] air con. It needs to be cleaned.

The birds are still sitting on the box and coming to my windows. The fly screens are infested as well. We can’t open the windows for fresh air.

I sent you a video as evidence to see and prove it.

The managing agents responded the same day, acknowledging the email but writing “you need to email NSW Housing for all this”.

18. On about 11 December, Ms Saglik had a long conversation with her pest controller by text message, in which she complained that she was still “fighting the fleas” and sought advice about how she can clean fleas on her furniture and belongings.

19. On 17 December, NSWLHC’s client services officer wrote to Ms Saglik, stating (my underlining):

I’m writing to you today to confirm that the real estate agents who manage your property have attended and completed a spray for pests and report that there is no evidence of fleas at your home.

Please be advised to stop contacting the real estate agents directly.

Please be aware that when you have any maintenance requests that you report them to the Maintenance Centre on 1800… or report non-urgent requests on the My Housing app.

Please don’t contact the agents directly as our maintenance team will liaise directly with them. …

20. On 27 December, Ms Saglik wrote to NSWLHC in which she requested NSWLHC hire a professional flea exterminator, describing her situation at that time as follows:

I am writing to you regarding the ongoing flea infestation in my home. Despite my previous emails, the issue remains unresolved. The strata sent pest control, but they have not succeeded in eliminating the fleas. I am still being bitten, and the fleas are infesting our furniture, clothing, and especially our beds.

Could you please arrange for pest control to visit again and treat the unit comprehensively? Although I have provided evidence of the flea problem, they denied it and only sprayed the floors. My home needs to be professionally …

[There is an obvious cut and join at this point in the email that is in evidence. The email then continued:]

…situation has severely impacted my mental health, causing my depression to worsen and leading to PTSD. The infestation has disrupted our sleep routine, especially mine, as I suffer from allergic reactions to the bites.

Could you please help resolve this problem by hiring a professional flea exterminator?

21. During the same period, Ms Saglik made a large number of telephone calls to NSWLHC and the managing agents, as shown in the telephone call logs contained in exhibit T1.

22. On 30 December, Ms Saglik engaged Bugfree Pest Control to undertake a “blanket spray” at the premises. On 15 January, Ms Saglik purchased a quantity of “Tekka Pro”, paying $103.75. In the absence of evidence on the point, I assume (without making any finding) that the product concerned was a pest-control chemical.

23. On 3 March, Ms Saglik wrote to NSWLHC:

… to formally request compensation under Section 187(1)(d), an Order for Repairs under Section 65(1)(a), and a Rent Reduction under Section 44(1)(b) of the Residential Tenancies Act 2010 (NSW) due to ongoing issues in my rental property.

As set out above, she lodged a similar application with the Tribunal on 29 April 2025.

32. Lastly, I note that Ms Saglik purchased (amongst other things) a variety of various pest control products and washing products at local supermarkets between November 2024 and April 2025, for which she has produced receipts in her evidence.

Ms Saglik’s pest control report

33. Separately from that chronology, Exhibit T2 contains a report on Bugfree Pest Control letterhead which states:

Following multiple visits to the property since December 30, 2024, we have identified a severe bird lice infestation on site. Despite our ongoing efforts to treat the infestation, it remains widespread, with the pests primarily concentrated around areas where birds have nested.

Since our first visit, we have applied targeted treatments using non-toxic, child- and pet-friendly solutions to address the issue. However, the infestation continues to be severe, affecting both indoor and outdoor spaces.

Given the persistent nature of the problem, we recommend additional treatments and monitoring to ensure complete eradication. We remain committed to resolving the issue and will continue to work with you until it is fully under control.

34. Ms Saglik states that she received that report from Bugfree Pest Control on or about 28 April 2025, just before she lodged her application in this proceeding. However it is difficult to give that report much weight, for several reasons:

1. The report is not dated. Consequently, it is difficult to identify when the report was prepared and, therefore, when it speaks from.

2. The report is not signed; nor is the maker of the report or their authority to represent Bugfree Pest Control identified in any way.

3. Similarly, the report does not identify the qualifications of the person who made the report, or the basis on which the maker relies to express the findings and opinions that are stated in the report.

4. The report refers to an unspecified number of “multiple” visits to the site, which could have taken place at any time over a five-month period.

5. The report does not set out any specific opinion on how large the infestation is beyond asserting in general terms that it is “severe”, “onsite” and “widespread”; or where the infestation referred to is located within the indoor space; or how the infestation may have moved into the house from outdoor areas.

6. The conclusions expressed in the report are bare assertions that do not allow the Tribunal to understand or examine the reasoning or methodology applied to the background facts asserted in the body of the report.

35. In a hearing under the rules of evidence, the report would most likely be excluded for those reasons. However this hearing is not being conducted under the rules of evidence. The above issues are, nevertheless, relevant in assessing the weight that can be given to the report. In this case, I find the report to be of little use because of those issues, as I will now explain.

35. Taken at face value, the highest that the unsigned and undated report goes is to assert (in general terms) that there was a large/severe/widespread bird lice infestation inside and outside the building on or about 30 December 2024, that has been treated by unspecified “targeted treatments” over an unspecified period and has proved to be resistant to those treatments as at the (unspecified) date the report was prepared. Even if I assume for the purpose of the proceeding that the report, with all of those faults, nevertheless corroborates Ms Saglik’s claim that there was a bird lice infestation inside the premises on 30 December 2024, the report does not assist the Tribunal in determining on the balance of probabilities how the infestation came inside the building; or how (if at all) the infestation arose from a defect in the building that was within the scope of the landlord’s repair obligations under the tenancy agreement.

The photographic evidence

37. Ms Saglik has also produced a bundle of undated and unverified photographs, which she asserts shows various minor cracks or other defects in internal walls of the premises. The photographs concerned have no probative value as they are unverified: no evidence has been produced to establish where, when or in what circumstances the photographs were taken. The cracks also appear to be small and consistent with a building that may be in the order of 30 years old. The overall conclusion that I reach from examining those unverified photographs is that the cracks concerned are cosmetic only. The evidence does not establish that these cracks have compromised the structural integrity of the building or that they have facilitated the entry of any bird lice into the premises. Consequently, I am not satisfied that repairing those minor cracks would be necessary in order to maintain the premises in a reasonable state of repair, or that bird lice has entered the premises through or because of those cracks.

Consideration – applying the law to the facts as found

38. I have determined the two claims before the Tribunal based on these findings.

39. As I indicated towards the top of these reasons, Ms Saglik has the burden of proving all of the elements of her claim in order to succeed (as does NSWLHC in its claim against Pingola).

40. I will firstly address Ms Saglik’s claim that the infestation is NSWLHC’s responsibility; together with NSWLHC’s consequential claim that the infestation is Pingola’s responsibility, through a failure to maintain the premises. I will then address Ms Saglik’s claim of a breach of her right to quiet enjoyment and her claim for a rent reduction under section 44(1)(b) of the RT Act.

(a)   The claims of failure to repair

41. The issues raised in this dispute fall close to the cusp between (firstly) the landlord’s repair and maintenance obligations under section 63 and the residential tenancy agreement, and (secondly) the tenant’s own cleaning obligations under section 51 and the residential tenancy agreement. There is consequently a significant factual issue about whether the flea or bird lice infestation that Ms Saglik complains of has been caused by a failure to repair or maintain the premises, or if it is a cleaning issue for which she is responsible. Ms Saglik has the burden of demonstrating on the balance of probabilities that the infestation has been caused by a failure to repair or maintain the premises to the required standard.

42. Distilling the many cases that have come before the Tribunal over many years, identifying which party is responsible for a pest infestation depends on the particular circumstances that were applicable at that time:

1. if the infestation existed at the start of the tenancy, then the landlord is responsible under the landlord’s repair and maintenance obligation;

2. if the infestation was caused by the tenant’s actions or lack of cleanliness, then the tenant is responsible under the tenant’s obligation to maintain the premises in a reasonable state of cleanliness;

3. if the infestation was caused by a defect in the property, then the landlord is responsible under the landlord’s repair and maintenance obligation; and

4. if the infestation has come from an external source, the origin of which is unclear, then responsibility for the infestation will depend on the evidence and the operation of the tenancy agreement.

43. In this case, Ms Saglik has the burden of proving (a) that the bird lice infestation was caused by a factor for which her landlord, NSWLHC was responsible and (b) that her landlord, NSWLHC breached the tenancy agreement by failing to maintain the premises in a reasonable state of repair. NSWLHC has the same burden in respect of its claim against its landlord, Pingola arising out of the same events.

44. As Gummow J stated in Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313, at 370-371, two criteria must be met for there to be a breach of an express covenant by a landlord to maintain premises in the required state of repair: First the landlord must have sufficient information about the existence of the alleged defect that would put a reasonable landlord on inquiry as to whether repair works are needed; and secondly, thereafter the landlord must have failed to carry out the necessary works with reasonable expedition. Consequently, each tenant must prove that (1) their respective landlord had notice of the need for repair or ought reasonably to have known of the need for repair; (2) the lice infestation is linked to a defect or failure to repair; and (3) that landlord failed to conduct the repair with reasonable expedition.

45. In this case, the infestation is alleged to have arisen more than four years into the tenancy, with no prior history of any previous infestation. While Ms Saglik alleges that the lice came in from outside, as a result of a bird nesting in the rainwater head, there is no evidence that demonstrates that the rainwater head was defective, or how the lice entered the premises. That assertion is, with respect, speculative at best.

46. The rainwater head and downpipe concerned appear to be constructed and installed normally, with an open top to allow excess rainwater to overflow if the gutter it serves overfills – which has since been covered over by Ms Saglik’s pest controller with bird netting. The evidence does not establish that the rainwater head required repair in order to comply with either landlord’s repair and maintenance obligation under section 63 or either tenancy agreement.

47. Ms Saglik asserts that the lice probably entered through the window screens at the premises, or through the air conditioning servicing the premises; or through the ground space under the building, but that is mere speculation on her part. She has not produced sufficient evidence to show how the bird lice entered the premises. Further, Ms Saglik has not produced evidence that establishes that there was a causal link between a bird nesting in that one rainwater head (either before or after it was netted by Ms Saglik’s pest controller) and the entry of bird lice into the premises.

48. Lastly, while Ms Saglik (a) was admitted to Auburn Hospital on 23 October 2024 with a rash over her body from flea bites, and (b) arranged her own pest controller to undertake a general pest control and flea treatment at the premises on 25 October and 9 November 2024, there is no evidence before the Tribunal to establish that Ms Saglik notified either NSWLHC or Pingola/its managing agent of the flea/bird lice problem until she contacted NSWLHC’s Maintenance Response Centre by telephone on 26 November 2024, a full month later. As mentioned above, there is no record of any bird lice infestation or any complaint about a potential bird lice infestation in the record of NSWLHC’s client service visit on 6 November 2024, and there is no record of any attempt made by Ms Saglik to contact either landlord until 26 November.

49. The situation changed after that date. From 26 November, onwards, Ms Saglik was in regular contact with both NSWLHC and Pingola’s managing agent, pressing her complaints that there was a bird lice infestation at that time. NSWLHC also acted promptly to address those complaints: by 2 December (6 days later) NSWLHC had issued a work order to address the bird nest/bird lice issue. NSWLHC had also arranged for Ms Saglik to stay away from the premises for a few nights, but Ms Saglik did not use all of that accommodation because of her complaints about bed bugs. Those complaints are not substantiated by any evidence. By the following day (3 December), Pingola’s managing agents had also arranged for a pest control specialist to inspect the premises and treat the premises. By Ms Saglik’s account, that pest controller visited the property two days later (5 December).

50. In her subsequent correspondence, Ms Saglik made unsubstantiated allegations that the treatment the owner’s pest controller gave the premises was negligent, but those complaints were not supported by any evidence – beyond Ms Saglik’s assertions – of the work that was undertaken, or any suitable training, qualifications or experience that gave Ms Saglik sufficient expertise to judge appropriately the quality of the work that the pest controller undertook.

51. The photographs produced by Ms Saglik to the Tribunal did not definitively show that her premises were infested by fleas or bird lice on any particular date. While the photographs showed a variety of surfaces within (what I can only assume is) the premises with either black specks in the images or hand-drawn circles and annotations on the images, but none of those photographs establish on the balance of probabilities that what is being shown in the image is bird lice. The only evidence that it might be bird lice are Ms Saglik’s unsworn and uncorroborated assertions that the photographs show fleas. Unfortunately, even when taken together and at their highest, that evidence does not persuade me on the balance of probabilities that the premises remained infested with bird lice after they were treated in December 2024.

52. Drawing these issues together, Ms Saglik has not established any of the following:

1. that the nesting of pigeons in the rainwater head was due to a defect in the premises;

2. that the lice entered the building because of any such defect or because of another defect in the premises; or

3. that NSWLHC failed to act after being notified of the alleged bird lice infestation.

53. In those circumstances, the tenant has not established that NSWLHC is responsible for rectifying any bird lice infestation, or that NSWLHC has breached any obligations that it had under the subtenancy agreement to rectify the alleged bird lice infestation. Consequently:

1. Ms Saglik has not established the prerequisite factors under section 65(2)-(3A) for the Tribunal to make a repair order against NSWLHC under that section;

2. Ms Saglik’s claim for compensation against NSWLHC also fails; and

3. Ms Saglik remains responsible for pest control at the premises in respect of the issues that she has raised, under her obligation to keep the premises reasonably clean.

54. NSWLHC’s claim against Pingola chiefly relied on Ms Saglik’s claims against NSWLHC. NSWLHC’s claims for repair orders and compensation against Pingola must therefore also fail for the same reasons (mutatis mutandis). On the evidence before the Tribunal, NSWLHC has similarly failed to establish:

1. that the nesting of the pigeon in the rainwater head was due to a defect in the premises;

2. that the lice entered because of that defect or because of another defect in the premises; or

3. that Pingola failed to act after being notified of the alleged bird lice infestation.

55. The claims made in both proceedings under sections 63 and 65 of the RT Act therefore fail.

(b)   The claim of breach of quiet enjoyment

56. Ms Saglik claims, additionally and in the alternative, that the alleged bird lice infestation interfered with her quiet enjoyment of the premises, as provided for in s 50 of the RT Act and clause 12 of the subtenancy agreement.

57. Section 50 and clause 12 give a tenant a limited right to quiet enjoyment of rental premises, without interference by their landlord or by parties connected with their landlord. It is not a cast-iron guarantee against interference from all persons or all causes, regardless of their origin. That is because quiet enjoyment is defined in ss 50(2) and (3) and in the equivalent parts of clause 12 in terms of “reasonable” peace, comfort and privacy. The tenant’s right to quiet enjoyment must therefore be read accordingly.

58. The use of the word “reasonable” implies that a tenant’s right to quiet enjoyment is not breached if that tenant suffers a mere inconvenience. Consistent with this, the UK House of Lords found in Southwark LBC v Tanner [2001] 1 AC 1 that a tenant’s comfort must be “substantially interfered with” for the interference to constitute a breach of the right of quiet enjoyment.  The Victorian Civil and Administrative Tribunal similarly held in McC v Director of Housing [2009] VCAT 2748 that bird noises, floodlighting and minor invasions of privacy are all mere inconveniences that do not amount to a breach of a tenant’s quiet enjoyment.  The Tribunal in that case stated further that “this is consistent with contemporary living arrangements requiring a degree of give and take, of tolerance regarding the behaviour of neighbours”.

59. The test usually used in New South Wales for determining whether a relevant person has interfered with the tenant’s “reasonable” peace, comfort and privacy was stated in Advance Fitness Corporation Pty Ltd v Bondi Diggers Memorial & Sporting Club Ltd [1999] NSWSC 264 at [111] (“Bondi Diggers” – my underlining): 

A breach of the covenant for quiet enjoyment occurs whenever the Landlord causes substantial interference with the enjoyment of the demised premises through an act or omission that is either deliberate or negligent in the sense that its consequences were reasonably foreseeable:  Martin’s Camera Corner Pty Ltd v Hotel Mayfair Ltd [1976] 2 NSWLR 15; Kohua Pty Ltd v Tai Ping Trading Pty Ltd (1985) 3 BPR  [97,240]; P Butt , Land Law (3rd ed 1996), p305- 308. 

That test is again framed in terms of a “substantial interference” that must be caused by the landlord (or the agent or another person who is included under the extended terms in s 50).  That test also requires elements of negligence or deliberate conduct on those persons’ behalf, with reasonably foreseeable consequences. 

60. The Bondi Diggers decision has been followed in many residential tenancy cases in New South Wales, such as Roberts v NSW Aboriginal Housing Office [2017] NSWCATAP 9; Makowska v St George Community Housing Ltd [2020] NSWCATAP 159 and Greco v NSW Land & Housing Corporation [2021] NSWCATCD 25.   Accordingly, I consider it the appropriate test to apply to Ms Saglik’s claim in this case. 

61. It is often argued before the Tribunal that a landlord’s failure to maintain premises in a reasonable state of repair gives rise to a co-extensive breach of the tenant’s right to quiet enjoyment under the tenancy agreement. For that logic to apply, the tenant must first establish that the landlord has failed to maintain the subject property in a reasonable state of repair under the tenancy agreement.

62. For the reasons just set out, Ms Saglik has not established any such breach of the landlord’s repair obligations on the part of NSWLHC. Further, Ms Saglik has not established that there has been any substantial interference with the enjoyment of the premises through any other act or omission on the part of NSWLHC that was “either deliberate or negligent in the sense that its consequences were reasonably foreseeable”, as described in the Bondi Diggers test. Consequently, Ms Saglik’s parallel claim that NSWLHC breached her right to quiet enjoyment of the premises also fails.

(c)   The rent reduction claim

63. The last part of Ms Saglik’s claim is the claim that there should be a reduction in her rent under section 44 of the RT Act because of a withdrawal or reduction of goods, services or facilities provided with the premises by the landlord, chiefly because of the landlord’s response the bird lice infestation.

64. As Sewell v Zvirblis [2022] NSWCATAP 337 makes clear, for s 44(1)(b) to apply the relevant reduction or withdrawal of goods, services or facilities must be carried out “by the landlord”. This is of particular importance in relation to premises that are part of a strata scheme or a community scheme, where there is also an owners corporation or a community association who exercises particular functions in relation to rented premises, and who may act in a way that reduces or withdraws good, services or facilities provided with the premises, independently of the landlord. Section 44(1)(b) does not apply in those events.

65. To make good on this part of the claim, Ms Saglik must lead sufficient evidence to satisfy the Tribunal objectively and on the balance of probabilities that (a) there was an infestation; and (b) the failure by NSWLHC to deal with the infestation in accordance with its obligations under the tenancy agreement, or the delay by NSWLHC in dealing with the infestation in accordance with those obligations, amounted to a reduction or withdrawal by NSWLHC of goods, services or facilities provided with the premises.

66. As I have concluded above, the evidence does not establish that the resolution of Ms Saglik’s bird lice complaint was a repair issue for which NSWLHC was responsible under the tenancy agreement. Consequently, it was a cleaning issue for which Ms Saglik was responsible under the tenancy agreement, not NSWLHC.

67. Looking at the evidence objectively, while I acknowledge that Ms Saglik made numerous complaints about bird lice issues up to and including mid-December 2024, for the reasons that I have set out above it has not been demonstrated on the balance of probabilities that NSWLHC was responsible for dealing with or treating the alleged bird lice infestation. As a result, it has not been demonstrated that NSWLHC reduced or withdrew any particular goods, services or facilities provided with the premises by failing to repair or resolve the infestation issue over that time.

68. As Ms Saglik has not established that there was a relevant reduction or withdrawal by NSWLHC of any relevant goods, services or facilities provided with the premises section 44(1)(b) does not apply in this case. This part of the claim therefore must also fail.

Conclusion and orders

69. It follows from the above that that the Tribunal is not satisfied to the civil standard (being the balance of probabilities) on the material put before the Tribunal that there are grounds for the Tribunal to make the orders sought in Ms Saglik’s application. That claim should therefore be dismissed.

70. As a result of that decision, the Tribunal also has not been satisfied that there are grounds for the Tribunal to make the orders sought in NSWLHC’s application against Pingola.

71. Both claims are therefore dismissed.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 27 October 2025