Taunton v NSW Land and Housing Corporation

[2022] NSWCATCD 137

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:	Taunton v NSW Land and Housing Corporation [2022] NSWCATCD 137
Hearing dates:	29 June 2022
Date of orders:	20 July 2022
Decision date:	20 July 2022
Jurisdiction:	Consumer and Commercial Division
Before:	A Lynch, General Member
Decision:	The landlord is to pay the tenant the sum of $520 on or before 31 July 2022. The balance of the application is dismissed.
Catchwords:	LEASE AND TENANCIES – Residential Tenancies Act 2010 (NSW) – Compensation – rent reduction – withdrawal of services – failure to repair
Legislation Cited:	Residential Tenancies Act 2010 (NSW)
Cases Cited:	Nil
Category:	Principal judgment
Parties:	Daniel Taunton (Applicant) NSW Land and Housing Corporation (Respondent)
Representation:	M Baker, Eastern Area Tenancy Service (Applicant) M Poche, NSW Land and Housing Corporation (Respondent)
File Number(s):	SH 22/16628
Publication restriction:	Nil

REASONS FOR DECISION

Application

1. By way of an application lodged on 14 April 2022 the tenant seeks an order that rent is excessive pursuant to Section 44(1)(b) of the Residential Tenancies Act 2010 (NSW) (“the Act”) arising from a failure to repair electrical wiring and compensation pursuant to Section 187 arising from stress, anxiety, inconvenience and embarrassment arising from the breach of his quiet enjoyment arising from a failure to repair by the landlord.

2. There is a residential tenancy agreement between the parties that commenced on 20 July 2020. The tenant pays subsidised rent of $112.05 per week.

3. Section 63 of the Act provides that a landlord must provide the premises in a reasonable state of repair. The tenant says that because of the landlord’s failure to repair roof leaks in the property, the electrical cabling has been compromised affecting his internet and tv reception. The tenant requests a rent reduction of $16.92 per day for 12 months.

4. The tenant also claims a sum of $2000 for breach of his quiet enjoyment of the property, causing him distress, disappointment and anxiety.

Submissions and Evidence

5. The matter was heard by way of a telephone hearing on 29 June 2022.

6. The tenant relied on submissions lodged on 9 June 2022 and gave sworn oral evidence. Mr Martin Barker, Eastern Area Tenancy Service, made submissions on his behalf.

7. The landlord relied on submissions lodged on 16 June 2022. The landlord was represented by Ms Melissa Poche.

8. The tenant said he first complained about the leak in the roof, the mould and leak coming down the back exterior wall of his apartment on 19 October 2020. Over the following 18 months he said he complained about these issues as well as difficulty getting adequate tv and internet reception in the property.

9. On 8 January 2021 the tenant sent an email to the landlord to say that due to the roof leaks there were issues regarding electrical/tv cables. It was confirmed by maintenance there was water coming down through the exterior wall from a roof leak. He referred to previous communication about the same issue on 19 October 2020.

10. On 10 November 2021 the tenant wrote to the landlord to say it was raining and his electricals were damaged from the leak on the roof. On 17 November 2021 there is an email from NSW Housing advising the tenant that the TV antenna was to be fixed.

11. On 2 May 2022 the tenant again advised the TV was not working due to the problems with the antenna wall outlet.

12. The tenant confirmed at the hearing he has no current issues with leaking in his property and the cable has been restored and he now has television reception. There are no other outstanding repairs to his unit.

13. The landlord submitted that they do not have responsibility pursuant to the Residential Tenancy Agreement to provide tv or internet facilities and therefore there has been no breach by the landlord.

Findings

14. I find there was an issue with the cable to the television. This is supported by the evidence that after the recent repairs the tv is now working without any reception issues. I find therefore that the leak in the roof and down the external wall was the likely reason for the failure of the tv antenna to work.

15. The issue was raised some time ago and taking into account long periods when we were in lockdown, it is reasonable there be a reduction of rent for a 12 month period to reflect the withdrawal of services arising from the failure to repair. I find that a sum of $10 per week is reasonable in the circumstances, amounting to a sum of $520.00. In awarding that sum I take into account the tenant’s evidence that he felt very isolated during COVID lockdowns and the television became an important aspect of the amenity of the property.

16. I am not however satisfied on the balance of probabilities that the landlord is responsible for issues of internet access. It is the responsibility of the tenant to arrange their own internet services, and the landlord has no obligation in the tenancy agreement to guarantee the internet services. There are many parts of Sydney and parts of properties that experience intermittent and regular issues with internet quality and access. I am not satisfied it reflects any failure to repair.

17. The landlord’s obligations, so far as repairs are concerned, relate to the tenant’s premises, and where it effects his comfort of the property it may extend to the common property. It appears in this case the tenant has become involved with assisting other tenants due to the ongoing problems in the building with leaks. These leaks however are affecting other lots in the scheme, rather than the residential premises of the tenant. I am not satisfied repairs should be ordered that do not relate to the tenant’s amenity of his property except in so far as they affect his electricals and therefore his tv reception. Those issues have now been resolved.

18. Other than the issue with the tv cable there is no evidence that any other power points were failing, or there were any leaks into the tenant’s property.

19. I am unable to find there is a substantial loss of enjoyment of the property that would warrant additional compensation other than the compensation awarded for the withdrawal of services for the failure to repair the cables to his tv.

Orders

1. The landlord is to pay the tenant the sum of $520 on or before 31 July 2022. The balance of the application is 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

Amendments

28 September 2023 - Formatting amendments.

Decision last updated: 28 September 2023