Vok v NSW Land and Housing Corporation

[2023] NSWCATCD 5

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

Vok v NSW Land and Housing Corporation [2023] NSWCATCD 5

Hearing dates:

19 January 2023

Date of orders:

10 February 2023

Decision date:

10 February 2023

Jurisdiction:

Consumer and Commercial Division

Before:

A Lynch, General Member

Decision:

The application is dismissed.

Catchwords:

LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Quiet enjoyment

LEASES AND TENANCIES — NSW Civil and Administrative Tribunal — Jurisdiction and power

Legislation Cited:

Civil and Administrative Tribunal Act 2013

Residential Tenancies Act 2010

Category:

Principal judgment

Parties:

George Vok (Applicant)

NSW Land and Housing Corporation (Respondent)

Representation:

George Vok (Self represented)

NSW Land and Housing Corporation
Solicitor: Ms Wong, Crown Solicitors Office

File Number(s):

SH22/49707

Publication restriction:

Nil

REASONS FOR DECISION

Application

1. By way of application lodged on 8 November 2022 the applicant, Mr Vok (‘the tenant’) claims a sum of $12,000 compensation for disturbance to his peace and quiet enjoyment arising from service of documents on 29 September 2022 by the respondent, NSW Land and Housing Corporation (“the landlord”) in proceedings SH22/31719. The applicant also claims out of pocket expenses in the sum of $1000 associated with files SH22/10874, SH22/31719 and 2022/00325169.

2. The tenant is also claiming a breach of Section 71 of the Civil and Administrative Tribunal Act 2013 (NCAT Act) in that the landlord made false and misleading statements in proceedings SH 22/31719.

Jurisdiction in regard to the claim for breach of Section 71 and claim for out of pocket expenses pursuant to Section 60 of the NCAT Act.

3. The applicant and the respondent are party to a social housing tenancy agreement that commenced on 11 September 2009.

4. In regard to the claim for a breach of Section 71 of the NCAT Act, Section 71 says:-

False or misleading statements

A person must not, in any proceedings or application to the Tribunal, provide any information, or make any statement, to the Tribunal knowing that the information or statement is false or misleading in a material respect.

Maximum penalty—50 penalty units or imprisonment for 12 months, or both.

5. The Tribunal does not have the power to impose penalties or imprison parties for an offence under the Act. Division 3 of the Act says:-

Commencement of proceedings

Proceedings for an offence against a provision of this Act or on an application under section 77 may be commenced only by any of the following persons (an authorised official)—

(a)  the Minister,

(b)  a person with the written consent of either the Minister or another person or body authorised by the Minister for that purpose.

76   Proceedings for offences

(1)  Proceedings for an offence against this Act are to be dealt with summarily before the Local Court.

(2)  Proceedings for an offence against this Act may be brought within the period of 12 months of the date on which the offence is alleged to have been committed.

6. This is an application for an offence against the NCAT Act, therefore the matter is to be dealt with by the Local Court and can only be dealt with by an authorised person. A Tribunal Member does not have that power and in the circumstances, that aspect of the claim is dismissed as the Tribunal does not have jurisdiction.

7. The claim for costs in matters SH22/10874, SH22/31719 and 2022/00325169 can only be dealt with as part of the proceedings. Section 60 of the NCAT Act says:-

Costs

(1)  Each party to proceedings in the Tribunal is to pay the party’s own costs.

(2)  The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs.

(3)  In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following—

(a)  whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings,

(b)  whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings,

(c)  the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law,

(d)  the nature and complexity of the proceedings,

(e)  whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance,

(f)  whether a party has refused or failed to comply with the duty imposed by section 36(3),

(g)  any other matter that the Tribunal considers relevant.

(4)  If costs are to be awarded by the Tribunal, the Tribunal may—

(a)  determine by whom and to what extent costs are to be paid, and

(b) order costs to be assessed on the basis set out in the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) or on any other basis.

(5)  In this section—

costs includes—

(a)  the costs of, or incidental to, proceedings in the Tribunal, and

(b)  the costs of, or incidental to, the proceedings giving rise to the application or appeal, as well as the costs of or incidental to the application or appeal.

8. Costs are to be awarded by the Tribunal hearing the proceedings. Costs cannot be determined by way of a separate application to the Tribunal as is the case here. Costs for other Tribunal applications cannot be determined in this application.

Claim for $12000 for disturbance of peace and quiet enjoyment and breach by the landlord

9. In regard to the claim for damages arising from the service of evidence the question to be addressed by the Tribunal are-

1. What is the breach by the landlord?

2. If a breach is established is there a compensable loss?

10. The matter was heard by way of an in person hearing before the Tribunal on 19 January 2023.

11. The tenant appeared and relied on his Affidavit served with his application dated 7 November 2022 and documents lodged on 15 December 2022 and 3 January 2023. The landlord had received a copy of those documents.

12. The landlord was represented by Ms Wong, Crown Solicitors Office, and she relied on documents served on 15 and 30 December 2022 by the landlord. The tenant had received a copy of those documents. Legal representation was granted to the landlord by Member Eftimiou on 29 November 2022.

13. The tenant says that on 29 September 2022 the respondent delivered a copy of the material they were relying upon in SH22/31719 that was heard by the Tribunal on 21 October 2022. The tenant says that in those submissions the landlord alleges the tenant refused access to the landlord’s tradespeople and as a result the tenant had immediately experienced “emotions of anguish, anxiety, frustration and irritability.” The tenant says the service of the evidence was a breach of his peace and quiet enjoyment. The applicant seeks compensation.

14. Section 50 of the Act says as follows:-

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.

15. The question is whether the service of the documentation is a breach of the tenant’s quiet enjoyment. I do not believe that service of documents in accordance with directions of the Tribunal can amount to a breach of the tenant’s quiet enjoyment of the property. It does not interrupt the tenant’s use of their property. It was a single event. The landlord was complying with directions made by the Tribunal in proceedings commenced by the tenant. The tenant chose to continue proceedings even though other tenants in the same building had reached consent agreements.

16. The tenant alleges there was unsubstantiated and untrue allegations made about access however those are matters that should have been appropriately dealt with in proceedings SH22/31719 heard by the Tribunal on 21 October 2022. Further, although the papers were served in relation to proceedings raised about the tenancy, I am not satisfied that complying with Tribunal directions can be a breach of the obligation to provide peace and quiet enjoyment. The service of documents does not go directly to the provision of the tenancy agreement but rather relate to the legal proceedings rather than the residential tenancy agreement. I find there is no breach of the landlord’s obligations under the tenancy agreement.

17. 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

23 August 2023 - Formatting amendments.

Decision last updated: 23 August 2023