Toki v Beirs

[2017] NSWCATCD 24

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Toki v Beirs [2017] NSWCATCD 24

Hearing dates:

17 February 2017

Decision date:

05 April 2017

Jurisdiction:

Consumer and Commercial Division

Before:

K. Ross, Senior Member

Decision:

1.   By consent, the Rental Bond Services is directed to pay the tenant Nikola Lee Toki the whole of the Rental Bond number       E915254-2

2.   The balance of the application is dismissed

Catchwords:

Compensation, repairs, rent reduction, extension of time

Legislation Cited:

Residential Tenancies Act 2010
Residential Tenancies Regulation 2010

Cases Cited:

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

Category:

Principal judgment

Parties:

Nikola Lee Toki (tenant)
Peter Rolf Beirs (landlord)

Representation:

Mr McDonagh for the tenant
Mr Morgan (managing agent) for the landlord

File Number(s):

RT 16/48289

Publication restriction:

Unrestricted

reasons for decision

Application

1. The tenant seeks compensation from the landlord at the end of the tenancy as follows: 1 King size bed and base $1559.00, 1 Queen size bed and base and pillow and protector $934.00, 1 Zanni 80 x 140 rug $99.00, 1 Zanni 200 x 295 rug $459.00, emergency repairs $913.00, clothes $400.00, soft toys $100.00, 2/3 rental deduction from 04/08/2016 to 23/09/2016 $1833.15, refund of water accounts $58.59 and $211.41.

2. The landlord opposes the orders sought and says that the premises were habitable throughout the tenancy. The landlord’s agent submits that there is no evidence that any goods were damaged. The application for a rent reduction was made after the tenancy ended and is out of time. In addition, the landlord offered to make repairs requested by the tenant, but she failed to provide access for those repairs to be carried out and in doing so failed to mitigate her loss.

3. The tenant also seeks an order for payment of the bond to her. This order was not opposed by the landlord and is made by consent.

Jurisdiction

4. There was a residential tenancy agreement in place between the parties. The tenancy commenced on 21 January 2016 and ended on 23 September 2016. The Tribunal has jurisdiction to hear and determine this dispute.

The tenant’s claim for rent reduction

5. The tenant seeks a reduction in rent for the period 4 August 2016 to 23 September 2016. She does so on the basis that, on 4 August 2016, in response to concerns that she raised about dangerous trees, the landlord’s agent advised her not to use areas of the house which were affected. She says that two bedrooms were affected, representing 2/3 of the 3 bedrooms in the premises.

6. The application arises out of the failure of the landlord to trim the trees.

7. The application was lodged on 3 November 2017. Section 44 (3) of the Residential Tenancies Act 2010 relevantly provides (emphasis added):

“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,...”

8. As this application was made after the tenancy ended, the Tribunal has no jurisdiction to entertain it under s 44. The requirement for the application to be made during the tenancy is a jurisdictional requirement, and not a time limit which the Tribunal can extend.

9. Section 43 (2) provides:

The rent payable under a residential tenancy agreement abates if residential premises under a residential tenancy agreement are:

(a) otherwise than as a result of a breach of an agreement, destroyed or become wholly or partly uninhabitable, or

(b) cease to be lawfully usable as a residence, or

(c) appropriated or acquired by any authority by compulsory process.

10. Because the cause of action arises from the landlord’s failure to lop the tress, which is a breach of the agreement, s 43 (2) does not apply, and accordingly s 45 does not apply.

11. In these circumstances, the application for a rent reduction is dismissed.

The tenant’s claim for compensation

12. The tenant alleges that the landlord breached the agreement by renting to her premises which were not fit for habitation, in that they exhibited cracking from which a substance (referred to during the hearing as cellulite), and dirt containing animal droppings, fell. In addition the tenant alleges that the premises were unsafe because the landlord failed to take adequate action to lop and trim the overhanging trees.

13. The tenant did not appear at the hearing. Her representative said that, as she has a disabled child and has moved out of the local area, she was unable to do so. He is a friend of the tenant, who said he did not reside in the premises. He gave evidence that the tenant was unaware of the risk posed by the substance falling from the cracks until he advised her that it may contain asbestos. He said that he has relevant expertise as he works in the demolition industry. However there was no evidence before the Tribunal that any testing of the substance had been undertaken.

14. The tenant provides a number of emails with her application. The Tribunal finds that the issues in respect of the trees and the cracking of the walls were reported to the landlord during a routine inspection on 22 April 2016 and confirmed by email on 26 April 2016. The Tribunal also finds that the landlord offered to have the repairs to the walls undertaken, and asked the tenant to provide a time frame, suggesting that perhaps the repairs could be carried out whilst the tenant was on holidays. The tenant did not provide the landlord with suitable dates for access, and no work was carried out.

15. The Act and regulations provide that a claim which arises from a breach of the agreement is to be filed within 3 months after the applicant becomes aware of the breach.(Reg 22 (9)). The time for commencing proceedings in respect of the cracking and trees was 3 months after the repairs were reported, and no action taken, that is, by the end of July 2016.

16. This application was filed on 3 November 2016, three months after the time for commencing proceedings expired. Accordingly, the tenant requires an extension of time to bring the application for compensation.

17. The principles to be applied in considering whether to extend time are those set out in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22. Whilst those principles were articulated in respect of an extension of time for appeal of a decision, they apply equally to consideration of extensions of time in initiating proceedings:

“(a) The length of the delay;

(b) The reason for the delay;

(c) The appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and

(d) The extent of any prejudice suffered by the respondent.”

18. The delay in this matter is 3 months. The tenant does not give any explanation for the delay, although the tenant’s representative said she did not know the seriousness of the matter until he pointed it out to her.

19. The Tribunal must also look at the likelihood of the tenant succeeding in this claim. She claims that her goods were damaged by the matter which fell from the roof, but in the absence of any analysis of that material, the Tribunal cannot be satisfied that the goods needed to be destroyed or disposed of. The tenant’s representative, whilst he may have some expertise, is not independent of the tenant. His lack of independence is apparent in his advocacy for her as her representative. Furthermore he was the one who carried out the repairs for which reimbursement is sought. The Tribunal can place little weight on his opinions as expert evidence.

20. She also claims reimbursement for what she says were urgent repairs carried out by Mr McDonagh. There is no evidence that the tenant sought the consent of the landlord for Mr McDonagh to carry out these repairs. The landlord had offered to do so in April 2016, but the tenant had not facilitated access. The tenant does not say when Mr McDonagh carried out the work, but the invoice is dated 11 October 2016. The Tribunal is not satisfied that the work was urgent, and is not satisfied that the tenant is entitled to reimbursement for the amount allegedly incurred.

21. In respect of the water usage accounts, the tenant’s representative said the issue had been raised to show the agent’s lack of good faith. No reason was given as to why the amounts should be refunded.

22. Assessing all of the evidence the Tribunal is not satisfied that the application has any prospect of success. In these circumstances the Tribunal declines to extend time, and the application for compensation is dismissed.

Orders

1. By consent, the Rental Bond Services is directed to pay the tenant Nikola Lee Toki the whole of the Rental Bond number E915254-2

2. The balance of the application is dismissed

K Ross

Senior Member

Civil and Administrative Tribunal of New South Wales

5 April 2017

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 June 2017