Temuera v NSW Land and Housing Corporation

[2024] NSWCATCD 59

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Temuera v NSW Land and Housing Corporation [2024] NSWCATCD 59

Hearing dates:

29 November 2024

Date of orders:

20 December 2024

Decision date:

20 December 2024

Jurisdiction:

Consumer and Commercial Division

Before:

P Zammit, General Member

Decision:

1 The respondent is to pay the applicant the sum of $600 on or before 17 January 2025.

Catchwords:

TENANCY – compensation – landlord’s obligations

Legislation Cited:

Residential Tenancies Act 2010 ss 50, 56, 57, 61, 187, 190

Civil and Administrative Tribunal Act 2013 s41

Civil and Administrative Tribunal Rules 2014 s23

Cases Cited:

Briginshaw v Briginshaw (1938) 60 CLR 336

Hadley v Baxendale [1854] 9 Ex 341

Marcourt v Clark [2012] NSWCA 367

O’Brien v Twynam [2016] NSWCATAP 125

Yang v NSW Land and Housing Corporation [2016] NSWCATAD 37

Yang v Webster [2018] NSWCATAP 293

Category:

Principal judgment

Parties:

Takai Temuera (Applicant)
NSW Land and Housing Corporation (Respondent)

Representation:

Counsel:

Solicitors:

File Number(s):

2024/00271501

Publication restriction:

NIL

REASONS FOR DECISION

1. This matter involves an application by Takai Temuera (the tenant) for orders pursuant to section 187(1)(d) of the Residential Tenancies Act 2010 (RT Act) for NSW Land and Housing Corporation (the landlord) to pay the tenant economic and non-economic compensation as a result of damage to the tenant’s property alleged to have been caused by the landlord’s contractors when attending the tenanted residential premises at 44 Fallon Street, Rydalmere (the premises). This application was made to the Tribunal on 18 July 2024.

EVIDENCE

2. The tenant provided to the Tribunal one bundle of documents which they sought to rely upon and also provided sworn verbal evidence to the Tribunal at the hearing. The bundle of documents included written submissions prepared by or on behalf of the tenant.

3. The landlord did not provide any evidence to the Tribunal and relied upon verbal submissions made at the hearing.

JURISDICTION

4. Whilst a copy of the residential tenancy agreement was not provided to the Tribunal, it is not in contention that there was a residential tenancy agreement between the parties to which the RT Act applies.

5. The RT Act is silent on when applications can be made to the Tribunal pursuant to section 61.

6. In circumstances where a time limitation period is not provided in the enabling legislation, section 23 of the Civil and Administrative Tribunal Rules 2014 (the “NCAT Rules”) applies.

7. Section 23 of the NCAT Rules provides:

23(3) Unless the Tribunal grants an extension under section 41 of the Act, an application must be made –

(a) in the case where enabling legislation specifies the period within which the application is to be made – within the period specified, or

(b) in any other case – within 28 days from the day on which the applicant became entitled under the enabling legislation to make the application.

8. The application has not been made within the time period permitted however the delay has been caused by the tenant taking all steps advised to her by the landlord to make a claim with the landlord’s insurance company.

9. Pursuant to section 41 of the Civil and Administrative Tribunal Act 2013 the Tribunal extends the period of time for making the application to 18 July 2024, being the date the application was received.

10. The Tribunal has considered the delay, whether the tenant has an arguable case and any potential prejudice to the landlord. The Tribunal notes that the landlord has not opposed the extension of time.

APPLICABLE LAW

11. The tenant’s claim for compensation has been made pursuant to section 61(2) of the RT Act. Section 61(2) provides

61(2) The Tribunal, may, on application by a tenant, order the landlord or the landlord’s agent to pay compensation to the tenant for damage to or loss of the tenant’s goods caused by any person in the exercise of a power of the landlord or landlord’s agent to enter residential premises under this Act or the residential tenancy agreement.

12. The landlord’s power to enter the residential premises is set out at sections 56 and 57 of the RT Act. In these proceedings section 56 applies. Section 56 provides

56(1) The landlord, the landlord’s agent or any other person authorised by the landlord may enter the residential premises at any time during the residential tenancy agreement with the consent of the tenant.

13. In the tenant’s written submissions the tenant seeks compensation from the landlord for a breach of the tenant’s peace, comfort and privacy.

14. The Tribunal has the power to award compensation pursuant to section 187(1)(d), however this does not act in isolation and must be evoked by another section of the RT Act. The relevant section is section 190 which allows for a landlord or a tenant to make a claim to the Tribunal if there has been a breach of the residential tenancy agreement.

15. The tenant submits that section 50 of the RT Act has been breached by the landlord. Section 50 of the RT Act sets out the tenant’s right to quiet enjoyment and provides as follows:

50(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…..

16. The tenant bears the onus of proving their case on the civil standard of proof, which is the balance of probabilities: Briginshaw v Briginshaw (1938) 60 CLR 336. This standard of proof was described by Lord Denning in Miller v Minister for Pensions [1947] 2 All ER 372 [at 374] as requiring the Tribunal to be satisfied that an alleged fact was “more probable than not”. However, the Tribunal must “feel an actual persuasion of [the alleged fact’s] occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality “ … [the occurrence or existence of the fact must be established]… to the reasonable satisfaction of the Tribunal”: Briginshaw [at 361-2].

17. In relation to the tenant’s compensation claim, any damage and loss claimed by the tenant must be a reasonably foreseeable consequence of the landlord’s breach of the agreement (assuming that is established): Hadley v Baxendale [1854] 9 Ex 341. The purpose of an award of damages for breach of an obligation under a residential tenancy agreement is compensatory, just as it is in other types of contracts. It is designed to put the injured party in the position in which they would have been in had the obligation been performed (or if the breach had not occurred), so far as money is capable of doing so. The injured party is not entitled to any amount of compensation that would result in them being put in a better position than they would have been if there had been no breach. The injured party also has a duty to mitigate their loss. They are not entitled to be compensated for any loss which could reasonably have been prevented: Marcourt v Clark [2012] NSWCA 367 [at 98-99]; O’Brien v Twynam [2016] NSWCATAP 125 [at 80 to 85]; Yang v NSW Land and Housing Corporation [2016] NSWCATAD 37.

BACKGROUND

18. The tenant received an occupational therapist report that set out different modifications that needed to be completed to the premises to support the independence of the tenant.

19. The landlord agreed to the modifications and arranged for a contractor to complete the modifications.

20. On or around 20 March 2024 the contractors attended the premises to complete modification works to the laundry area to raise the washing machine and dryer.

21. It is agreed between the parties that the contractors manhandled the tenant’s washing machine, dryer and dishwasher.

22. The tenant reported to the contractor on the following day that damaged had occurred to her appliances. Following which the tenant arranged for Sydney Appliances to complete “reports” on the appliances.

23. A resolution was not reached with the contractor nor with the landlord’s insurance company and the proceedings were commenced.

24. The tenant seeks the sum of $5,161.50 for economic loss, pursuant to section 61(2) and $3,500 for non-economic loss for breach of section 50.

APPLICATION OF SECTION 61 OF THE RT ACT

25. The landlord submits that section 61 does not apply in this matter as the landlord did not arrange for the contractors to enter the property to complete a landlord obligation under the residential tenancy agreement such as repairs. The contractor had entered the property to complete modifications that were at the request of the tenant and were therefore an improvement.

26. The Tribunal disagrees with the viewpoint taken by the landlord.

27. Section 61 of the DT act allows for the tenant to make an application for compensation for damage to the tenant’s goods caused by any person in “exercise of a power of the landlord or landlord’s agent to enter residential premises”.

28. The power of a landlord to enter the residential premises is set out at sections 55, 56 and 57. Section 55 set out circumstances in which the landlord may enter the residential premises without the tenant’s consent or notice, and the circumstances when the landlord can enter without consent after giving notice.

29. Applicable in this case, is section 56 which allows the landlord to enter the premises at any time with the consent of the tenant.

30. In these circumstances, where the landlord has entered the premises in accordance with a power to enter the residential premises, section 61 applies.

31. Section 61 does not limit the landlord’s liability for any damage to the tenant’s goods to only instances where the landlord is entering the property to complete repairs.

32. In the landlord’s submissions, the Tribunal was directed to the case of Yang v Webster [2018] NSWCATAP 293 in which the appeal panel dismissed the appeal against the original decision of the Tribunal. The matter at first instance involved a tenant seeking compensation under section 61 for items that were taken after the landlord’s agent had completed an open inspection of the premises.

33. The appeal panel decision does not discuss section 61 in detail and the decision does not assist the landlord in their position as to the restricted application of section 61.

34. The Tribunal is satisfied that the contractor, organised and paid for by the landlord, entering the premises with the consent of the tenant is covered by section 61.

ASSESSMENT OF DAMAGES

35. The tenant submits to the Tribunal that as a result of the manhandling of the tenant’s appliance, the tenant’s washing machine, dryer, and dishwasher were damaged.

36. The applicant relies on service detail reports from Sydney Appliance Service, however the Tribunal notes that there is no report in relation to the dishwasher.

37. In the report for the dryer, the service technician has written “Check the dryer found damage at front frame asmbly, bottom lint cover, heat exchange filters asmbly, control panel asmbly due to carpenter damage the dryer. Its cid, we can’t repair due to too much height and no room heavy machine”.

38. In the report for the washing machine, the service technician has written “Check the washing machine found its in the top bench photos attach. Drain hose is too low it not as per Samsung standard. Carpenter damage the machine front frame, door asmbly and control panel asmbly. Its cid. Its too height and heavy we can’t repair no room photos attach”.

39. The Tribunal is satisfied on the evidence, including the photographic evidence provided by the applicant, that there was cosmetic damage cause to all three appliances and accepts the evidence of the applicant that this damage was caused by the contractors organised by the landlord.

40. However, the Tribunal is not satisfied on the evidence that the contractors caused damage to the working operation of the appliances. There is no evidence before the Tribunal advising what the problems are with the appliances, beyond the brief descriptions made by the service technician, whether the appliances are in working order, nor whether they are repairable.

41. As the applicant has shown only cosmetic damage that has been caused to the appliances and has not provided the Tribunal with an estimate of the cost of repairs, the Tribunal must do the best it can on the evidence before it to establish the amount of compensation to award for cosmetic damages.

42. The Tribunal awards the tenant nominal damages for the cosmetic damage caused to the three appliances in the total sum of $600, equating to $200 per appliance.

BREACH OF QUIET ENJOYMENT

43. The tenant alleges the landlord breached the tenant’s quiet enjoyment by not taking all reasonable steps to ensure minimal disturbance and nuisance caused.

44. The tenant stated that she had to find alternative places and ways in which to wash and clean her clothes due to the non-functioning washing machine.

45. Section 50 requires the landlord to have interfered, caused or permitted an interference with, the reasonable peace, comfort or privacy of the tenant in using the residential premises.

46. The landlord entered the premises with the tenant’s consent to have works completed.

47. The interference with the tenant’s reasonable peace, comfort and privacy was caused by tenant’s inability to use the washing machine and dryer. In accordance with previous findings, the Tribunal is only satisfied that the landlord’s contractors cosmetically damaged the tenant’s appliances.

48. The tenant has failed to establish how the landlord has breached section 50 of the RT Act and the claim is dismissed.

OVERALL

49. The Tribunal orders the landlord to pay the tenant the sum of $600 on or before 17 January 2025.

50. The balance of the claim 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

Decision last updated: 02 May 2025