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ACT CIVIL & ADMINISTRATIVE TRIBUNAL
CM v COMMISSIONER FOR SOCIAL HOUSING (Residential
Tenancies) [2017] ACAT 59
RT 3/2016
Catchwords: RESIDENTIAL TENANCIES – breaches of tenancy
agreement – remedies for breaches – medical evidence about the
capacity of the applicant meant corroboration required –
application dismissed
Legislation cited: Civil Law (Wrongs) Act 2002 s 110
Human Rights Commission Act 2005 s 62
Residential Tenancies Act 1997 ss 71, 76, 83 standard terms 52,
54, 55, 57, 59
Cases cited: Aye v ACT Housing [2001] ACT RTT 13
Best v Hardie (Tenancy) [2010] NSWCTTT 91
Ferguson v Crawford [2003] NSWCTTT 148
Grenerger v Gilmour (Tenancy) [2012] NSWCTTT 4
Skennar and Severin v Tapsed Pty Ltd [2004] NSWCTTT 419
Stotski v Raper [2005] NSWCTTT 704
Werner v Lichaa [2004] NSWCTTT 784
Tribunal: Senior Member L Beacroft
Date of Orders: 11 August 2017
Date of Reasons for Decision: 11 August 2017
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) RT 3/2016
BETWEEN:
CM
Applicant
AND:
COMMISSIONER FOR SOCIAL HOUSING
Respondent
TRIBUNAL: Senior Member L Beacroft
DATE: 11 August 2017
ORDER
The Tribunal orders that:
1. The application is dismissed.
2. A person must not publish any information about this matter or any evidence
provided during the proceedings that will identify the name of the applicant.
………………………………..
President G Neate
Delivered for and on behalf of the Tribunal
2
REASONS FOR DECISION
1. CM (the applicant), is a tenant of the Commissioner for Social Housing (the
respondent), having entered into a residential tenancy agreement (the
agreement), dated 6 March 2002, for a premises in O’Connor, ACT (the
premises). The standard residential tenancy terms (the terms) as set out in
Schedule 1 to the Residential Tenancies Act 1997 (the Act) applied to the
tenancy. In her amended application dated 9 March 2016 filed with the ACT
Civil and Administrative Tribunal (ACAT or the Tribunal), the applicant
contended that many terms were breached. On the basis of these breaches, the
applicant sought various rent reductions for various periods of the tenancy under
section 71(1) of the Act; various compensation for her alleged loss under
section 83(d) of the Act; and specific performance of the respondent’s
obligations as the lessor under section 83(b) of the Act. The respondent denied
that the agreement was breached. The Tribunal has exclusive jurisdiction in
disputes about the agreement.1
2. Prior to her application to the Tribunal, the applicant had made complaints to
the Human Rights Commission (HRC) and the ACT Ombudsman about the
condition of her premises. As a result of these complaints, in August 2014 an
arrangement was agreed between the parties whereby the applicant would
“notify her ADACAS Advocate [ACT Disability, Aged and Carer Advocacy
Service] … of any maintenance issues that she is experiencing in relation to her
home so that the Advocate can advise Housing ACT … [and the relevant person
at Housing ACT] will notify Spotless [the maintenance provider for Housing
ACT]…2 Under section 62 (4) of the HRC Act, the agreement when it was filed
at the Tribunal and being a discrimination complaint became enforceable as if it
is an order of the Tribunal.
3. The Tribunal sets out below its reasons for the order set out above. In summary,
the applicant bears the onus of proof and the Tribunal sought corroboration
from other evidence for any of the applicant’s contentions due to the medical
1 Section 76 of the Residential Tenancies Act 1997 2 Conciliation Agreement under section 62 of the Human Rights Commission Act 2005, ACT HRC ref number 131204753, dated 12 August 2014
3
and other evidence about the applicant’s capacity to misconstrue the facts. The
Tribunal finds that the applicant did not prove on the balance of probabilities
any of the alleged breaches by the respondent of the tenancy agreement, and
that the evidence provided by the respondent is to be preferred. On this basis the
applicant’s application for remedies due to alleged breaches of the tenancy
agreement by the respondent is dismissed.
Conduct of the hearing
4. A hearing was held on 2 and 21 September 2016. The applicant was represented
by Mr Avner Bahren, Solicitor, and the respondent was represented by
Ms Catherine Warden, ACT Government Solicitors supported by Mr Chris
Atkins, advocate, Commissioner for Social Housing. Oral evidence was given
by the applicant; Ms Jacqui Daniels, Manager, Contract Management,
Commissioner for Social Housing; Ms Ivette Gonzalez and Ms Michelle
Peruzzi both advocates from ACT Disability, Aged and Carer Advocacy Service
(ADACAS) who supported the applicant at various times; Mr Damien Howe,
Proper Officer, Spotless (the maintenance contractor for the respondent);
Dr Mark Scarborough, the applicant’s clinical psychologist; Dr Sean Flanagan,
the applicant’s ear, nose and throat surgeon; Mr Graham Bowen, Senior
Director, ASI Locksmiths (a sub-contractor to Spotless), Mr Kelvin Aument,
Chief Financial Officer, Affinity Electrical (a sub-contractor to Spotless), and
Dr Tran, the applicant’s General Practitioner.
5. Prior to the hearing the parties exchanged and filed various documents setting
out their contentions and supporting evidence. Both parties subpoenaed various
material including records of Spotless and medical records of the applicant,
which was in evidence before the Tribunal.
6. The contested issues at the hearing were as follows:
(a) Did the respondent breach the agreement, and if so, in what way?
(b) If the respondent breached the agreement, what remedies are appropriate?
4
Applicants’ contentions
7. The applicant has the burden of proving her case on the balance of probabilities.
Her contentions on the two contested issues in paragraph 8 above are
summarised below.
Issue (a) Did the respondent breach the agreement, and if so, in what way?
8. The applicant’s submissions were that the applicant complied with the
agreement and that the respondent breached the following terms: 52 (“peace,
comfort or privacy” in use of the premises, that is, quiet enjoyment), 54(1)(a)
(“at the start of the tenancy” the premises are “fit for habitation”) , 54(1)(c) (“at
the start of the tenancy” the premises, including appliances etc, are in a
“reasonable state of repair”), 54(1)(d) (“at the start of the tenancy” the premises
are “reasonably secure”), 55(1) (premises are maintained in a “reasonable state
of repair”), 57 (non-urgent repairs within four weeks of notice, subject to the
tenant providing notice and the negligence or wilful acts of the tenant), and 59 (
carry out urgent repairs “as soon as necessary, having regard to the nature of the
problem”, subject to the tenant providing notice).
9. The applicant’s contentions about each of the alleged breaches were very
detailed, and are summarised below.
10. The applicant contended that in April 2012 she had problems with her air
conditioning unit, that it leaked gas into her premises, that it was on the cooling
cycle permanently, and that she reported this problem to the respondent. The
applicant contended that there was a series of unsatisfactory attendances by
tradespersons about the unit, and that when tradespersons attended in or about
mid-April 2012 they said that there were “corroded” pipes in the wall behind the
air conditioner.3 However the unit was not turned off, the leak was not stopped,
and the situation continues to date.4 In addition, the applicant could not properly
heat or cool the premises.5
11. The applicant contended that she has suffered and continues to suffer significant
problems with her voice and breathing airways due to the “gas leak [associated
3 Applicant’s amended application, dated 9 March 2016, paragraph 2.12 4 Applicant’s amended application, dated 9 March 2016, paragraphs 2.13 – 2.16, 11.6 5 Applicant’s amended application, dated 9 March 2016, paragraph 11.8
5
with the unit] and/or the constant exposure to excessively cold premises.”6 On
this basis the applicant claimed a rent reduction under section 71(1)(a)(i) and
(ii) of the Act of 40% of the weekly rent from 15 March 2012 to 24 February
2016, being $8011.40.7
12. She claimed that the gas leak and the delay in replacing the air-conditioner
caused her a loss of amenity and health problems. In her oral evidence the
applicant explained that she largely lived in the lounge room where the gas from
the air-conditioner leaked, and the extreme cold and gases caused problems with
her voice. In a medical report obtained by the applicant for the proceedings,
Dr Sean Flanagan advised that he had first seen the applicant in October 2012,
and that she suffers from “ongoing issues with the irritation of the upper and
lower airways exacerbated by environmental factors.”8 The applicant also
claimed that the breathing of her pet birds was adversely impacted by the gas
leak, and provided various medical notes about her bird dated 22 February
20169 and 7 December 2015.
10
13. The applicant referred to the case of Best v Hardie [2010] NSWCTTT 91 to
support her claims. In that case an air-conditioner failed in July and was not
fixed until November, the landlord provided no heater, and the tenant received a
rent reduction for the costs of replacement heating incurred by the tenant.
14. Beginning in about July 2013, the applicant contended that unidentified persons
assaulted and robbed the applicant and/or entered the premises, and/or stole
property including the keys to the premises, at various times, with the last
incident noted by the applicant in her submissions being in December 2014. She
contended that in mid-December 2014 the premises were burgled using the keys
that were stolen the month prior.11
The applicant contended that she reported
each of these incidents to the police. She provided ‘Police Incident Report
5446917’ for an incident on 3 July 2013 reported 4 July 2013, an assault and
6 Applicant’s amended application, dated 9 March 2016, paragraphs 2.15, 11.6 7 Applicant’s amended application, dated 9 March 2016, paragraphs 12.1-12.2 8 Letter by Dr Sean Flanagan, dated 16 May 2016, attachment 20, applicant’s witness statement
dated 23 June 2016 9 Exhibit A5, Canberra Vet Hospital, patient history dated 22 February 2016 10 Exhibit A7, RSPCA (ACT) Veterinary Clinic, medical note dated 7 December 2015 11 Applicant’s amended application, dated 9 March 2016, paragraphs 3.1 – 5.4
6
robbery at about 6:30pm at her front door, which is first mentioned in the
ADACAS case notes on 24 October 201312
, ‘Police Incident Report 5712831’
for an incident on 12 November 2014 reported 24 November 2014, an assault
and burglary, which the ADACAS case notes mention on 24 November 201413
,
and a police card showing a police incident number 1334203 logged on
9 December 201414
which is likely to be a burglary based on the ADACAS case
notes.15
The ADACAS case notes mention other incidents reported to them by
the applicant during the timeframe relevant to this matter, for example, a
burglary on 16 September 2013 that was reported to the police (police incident
number 1219227) and the respondent.16
The applicant contended that she
contacted the respondent after each incident to have the locks changed and kept
in good order. While locksmiths did attend the premises, she contended that the
locks were not changed promptly or at all and/or not kept in good order as
necessary.
15. The applicant cited several authorities to support her arguments: Stotski v Raper
[2005] NSWCTTT 704 where a tenant complained about the security of the
premises, window keys were not provided for the lockable windows, the
premises were burgled, the Tribunal found that the premises were not
reasonably secure and the tenant was compensated for loss; Skennar and
Severin v Tapsed Pty Ltd [2004] NSWCTTT 419 where the tenants requested
window bars be installed on a certain window on police advice following a
burglary, however they were not installed and another burglary through that
window occurred, the Tribunal found that the premises were not reasonably
secure and awarded the tenants compensation for loss; Ferguson v Crawford
[2003] NSWCTTT 148 where the premises were burgled three times and after
the first burglary the tenants requested lockable windows but these were not
installed, the Tribunal found the premises were not reasonably secure and
awarded compensation to the tenants for their loss; Aye v ACT Housing [2001]
ACT RTT 13, where keys to a security door was not provided to the tenant at
12 Exhibit A6, ADACAS case notes, case note by Michelle Peruzzi dated 24 October 2013 13 Exhibit A6, ADACAS case notes, case note by Michelle Peruzzi dated 24 November 2014 14 Attachments 3 and 4, applicant’s witness statement dated 23 June 2016 15 Exhibit A6, ADACAS case notes, emails between Michelle Peruzzi and Deshawn Wattanatassi
dated 12 December 2014 16 Exhibit A6, ADACAS case notes, case notes by Michelle Peruzzi dated 16 September 2013
7
the commencement of the tenancy and in addition a sliding courtyard door was
not reasonably secure because of faults in the mechanism, the premises were
burgled and the Tribunal awarded compensation to the tenant. On the basis of
the above contentions and authorities, the applicant claimed a rent reduction
under section 71(1)(a)(i) and (ii) of the Act of the weekly rent from 12 March
2014 until 24 February 2016 for unsecure premises and unsafe premises, being
$889.07 in total.17
16. In addition to the problem with her air-conditioning (paragraph 12 to 15 above),
the applicant contended that there were several electrical problems resulting in
blackouts 3- 4 times/year between 2012 and 2016. She contended that she
couldn’t use all the components of the stove at the same time without the power
tripping, which an electrician had confirmed to her18
, and that another
electrician had recommended an “upgrade” to the switchboard.19
According to
the applicant, while she reported each electrical problem many of her reports
were not followed up. In about December 2014 the applicant had a blackout and
she contended that there were “sparks” coming from the switchboard, that she
was instructed by the respondent’s maintenance service to switch the
switchboard to the “off” position and she did so and then switched it on again,
and that she then received a shock that left her unconscious and caused a head
injury.20
She continued to experience electrical problems commonly, for
example on or about 20 March 2016 when the applicant contended that her
fridge stopped working and she was without power for some days.21
17. The applicant contended that on or about 9pm on 19 November 2015, there was
a fire on the cooktop of her stove “which spread and caused a shallow plastic
cafeteria style tray next to the cook top to partly melt.”22
The fire followed
“electrical sparks or electrical arcs arising from the glass surface of the cook
top.”23
She turned off the cooktop, and then unsuccessfully attempted to turn off
the fuse for the cooktop at the switchboard. She unsuccessfully tried to clear the
17 Applicant’s amended application, dated 9 March 2016, paragraphs 13-15 18 Work order 6340908, dated 9 April 2013, Exhibit A3 19 Work order 5771480, dated 12 December 2012, Exhibit A3 20 Applicant’s amended application, dated 9 March 2016, paragraph 6.1-6.8 21 Applicant’s witness statement dated 23 June 2016, paragraphs 52-53 22 Applicant’s amended application, dated 9 March 2016, paragraph 7.3 23 Applicant’s amended application, dated 9 March 2016, paragraph 7.3
8
air by opening the lounge room door. When she opened the front door she
“passed out from smoke inhalation, causing her to fall face forward.”24
She isn’t
sure how the fire was extinguished, and confirmed that the fire service didn’t
attend. The smoke alarm never activated. The respondent’s maintenance
services attended but “to date the stove top [and] main electrical switchboard for
the Premises has not been inspected, tested or repaired by a professional
tradesperson.”25
The applicant does not use the “top left hot plate” and has
“safety concerns [about]… the stove top and main electrical switchboard…”26
She contended that the following day she attended Calvary Hospital for medical
attention, and then later her GP for burns and smoke inhalation.27
She contended
that the cooktop has not been properly checked by an electrician since the fire.
She contended that parts of the area around the cooktop were blackened by the
fire, but that she “did some cleaning” which is why it not evident on inspection
later on.28
18. On about 20 or 21 February 2016, while watching her television the applicant
saw smoke and flames coming from the television or the power board in use.
The applicant extinguished the fire, and reported it to the respondent. However
she contended that no-one has followed up.
19. The applicant referred to authority to support her claims for the alleged fires
(refer to paragraphs 17 to 19 above): Grenerger v Gilmour [2012] NSWCTTT 4
where the Tribunal awarded compensation to the tenant due to the loss of use of
a cooktop for “an extensive period” and the loss of other kitchen amenities, with
tradespersons attending regularly29
; Werner v Lichaa [2004] NSWCTTT 784
where there was a fire at the premises, the fire brigade attended and the
evidence of a fire brigade officer attending a fire was that the unit’s fuse box
was defective and a great safety risk, and the Tribunal awarded compensation to
the tenant.30
24 Applicant’s amended application, dated 9 March 2016, paragraph 7.9 25 Applicant’s amended application, dated 9 March 2016, paragraph 7.15 26 Applicant’s amended application, dated 9 March 2016, paragraph 7.16 – 7.17 27 Oral evidence applicant, 2 September 2016 28 Oral evidence applicant, 2 September 2016 29 Grenerger v Gilmour [2012] NSWCTTT 4, page 2 30 Werner v Lichaa [2004] NSWCTTT 784, page 2
9
Issue (b) If the respondent breached the agreement, what remedies are
appropriate?
20. The applicant claimed rent reduction for certain periods for various breaches set
out above under section 71(1) of the Act, in the sum of $8900.47. She also
sought specific performance by the respondent under the agreement for certain
electrical and locksmith works. Finally she sought compensation for her loss
caused by the breaches, both replacement of damaged or stolen goods and
medical costs for her personal injuries, under section 83(b) and (d) of the Act.
While the total compensation sought was in part unspecified, it was upwards
from $9000.31
Respondent’s contentions
21. The respondent contended that the application should be wholly dismissed. An
overriding contention of the respondent was that the weight given to applicant’s
recollection of events and incidents was to be considered in the context of
medical evidence from the applicant’s health professionals. They quoted from a
letter from the applicant’s clinical psychologist Dr Mark Scarborough, dated
21 April 2008, as follows:
…I also believe that [CM] probably suffers from a Factious Disorder with
combined psychological and physical signs and symptoms, often engaging
in pseudolgia fantastica…32
22. They also quoted a similar statement from a report about the applicant from a
consultant psychiatrist Dr P Farbach, dated 10 May 2010.33
The respondent also
referred to a hospital discharge summary for the applicant dated 2 January 2013
which states that the applicant “has delusional disorder, psychotic illness,
paranoia…”34
23. The respondent’s contentions against the two contested issues listed in
paragraph 6 above are summarised below.
31 Applicant’s amended application, dated 9 March 2016, paragraphs 12-15, and orders sought 32 Respondent’s response, dated 19 August 2016, annexure N, letter from Dr M Scarborough to
Dr H Berenson, dated 21 April 2008 33 Respondent’s response, dated 19 August 2016, annexure O, report by Dr P Farnbach, dated
10 May 2010 34 Respondent’s response, dated 19 August 2016, annexure C, contractor’s estimate, dated
28 August 2012
10
Issue (a) Did the respondent breach the agreement, and if so, in what way?
24. In response to the applicant’s contentions set out above (paragraph 10 to 13),
concerning an air-conditioner, the respondent contended as follows. The
respondent’s records do not evidence a call from the applicant about the air-
conditioner in April 2012. The records show she called about a problem, with
the “main switch” on 18 July and that a tradesman on 20 July 2012 fixed it. He
noted that her then heater was “tripping powerboard”, and so he left her a
replacement column heater which he tested to be sure it was operating.35
Given
the provision of a heater the respondent contended that the applicant could have
warmed herself. It is not clear from the respondent’s records the exact date that
they became aware of the problem with the air-conditioner – Ms Daniels gave
oral evidence that it was in July 2012.36
Certainly the respondent was aware of
the applicant’s concerns by the 8 August 2012.37
The various records show that
a tradesman attended the premises on 10 August 2012 and he identified a leak38
,
and again on 28 August 2012 at which time the tradesman recommended
replacing the air-conditioner due to a “leak in indoor unit” and he set out
various requirements for this work, for example a boom would be required, re-
enforcing that it was not a simple job.39
The relevant work orders, including one
which diagnosed the problems with the air-conditioner in some detail after
doing “diagnostic tests”40
, do not state that the air-conditioning unit was
permanently working on the cooling cycle as the applicant alleged.
25. Some of the work for a new unit to be installed was undertaken on 20
November 201241
, however the necessary access to secure common property in
the building was unexpectedly not possible due to a problem with the
35 Respondent’s response, dated 19 August 2016, annexure B, work order dated 20 July 2012, and
annexure A, works for specific property, page 16; Exhibit A4, Affinity Electrical notes, service report 75474 dated 20 July 2012
36 Oral evidence, Ms Jacqui Daniels 21 September 2016 37 See issue date for work order for replacing air-conditioner, annexure D, work order, dated
12 December 2012 38 Exhibit A4, Affinity Electrical notes, service report 75639 dated 10 August 2012 39 Respondent’s response, dated 19 August 2016, annexure P, discharge summary, dated
1 January 2013; Exhibit A4, Affinity Electrical notes, service report 78955 dated 28 August 2012
40 Contractor’s estimate for work order 5771480, dated 28 August 2012, Exhibit A3, applicant’s bundle of subpoenaed Spotless documents; Exhibit A4, Affinity Electrical notes
41 Exhibit A4, Affinity Electrical notes, service report 78996 dated 20 November 2012
11
applicant’s key42
, and so it was completed on 12 December 2012, with two
electricians attending.43
The respondent contended that the delay in installation
was due to “the Applicant’s refusal for the work to be undertaken earlier due to
her unavailability.”44
Mr Kevin Aumont from the electrical firm doing the work
confirmed in his oral evidence “several attempts to attend”45
, and a variation to
the work order stated that the work had to be delayed due to the tenant not
having access to the premises of the body corporate.46
The respondent also
contended that the delay was due to the complexity of the work.47
The records
demonstrated that the replacement of the air-conditioner was complicated due to
its positioning, required a cherry picker, access to parts of the premises
controlled by the body corporate, two electricians48
and that it took some hours
to complete.49
26. In response to the applicant’s contentions set out above (paragraphs 14 to 16),
concerning assaults of the applicant in July 2013 and 2014, and burglaries in
2014, the respondent contended that they are not liable for any injuries or
property loss. The respondent relied in particular on the evidence of Ms Jacqui
Daniels, and her review of the respondent’s records set out in her witness
statement and as confirmed in her oral evidence.50
Ms Daniel’s evidence show
that the respondent has responded to many requests for the security of the
premises to be attended to in various ways over the life of the tenancy.51
The
respondent contended it is not liable for any assault and robbery that occurred at
the entrance to the applicant’s premises in July 2013. The respondent’s records
42 Exhibit A4, Affinity Electrical notes, service report 78996 dated 20 November 2012 43 Exhibit A4, Affinity Electrical notes, service report 81591 dated 12 December 2012 and service
report 82633 dated 12 December 2012 44 Respondent’s response, dated 19 August 2016, paragraph 21 and referencing annexure D, work
order, dated 12 December 2012 45 Oral evidence, Mr Kevin Aumont, Chief Financial Officer, Affinity Electrical 46 Variation to work order 577480, Exhibit A3, applicant’s bundle of subpoenaed Spotless
documents 47 Oral evidence, Damien Howe, Proper Officer Spotless, 21 September 2016; Oral evidence
Ms Jacqui Daniels, 21 September 2016 48 Respondent’s response, dated 19 August 2016, annexure C, contractor’s estimate, dated
28 August 2012 49 Respondent’s response, dated 19 August 2016, annexure D, work order, dated 12 December
2012 50 Ms Jacqui Daniel’s witness statement, dated 19 August 2016, paragraphs 19 - 29 51 Attachment A, History of works for the premises, Ms Jacqui Daniel’s witness statement, dated
19 August 2016
12
show that during 2013-14 the applicant reported her keys stolen on 28 May
2013, and that all external locks were replaced on 30 May 201352
, and at her
request certain locks were again replaced/combinations changed on 19 July
2013, 17 September 2013 and 13 November 201453
. The respondent’s records
show that the applicant requested a key to the common area on 13 November
2014, but as this was a matter for the body corporate the respondent could not
act on this.54
The respondent has a record of the applicant reporting a burglary
on 11 December 2014, and on the 15 December 2014 the external locks were
changed.55
A request to have a lockable sliding door fitted was rejected by the
respondent since the door configuration at the premises would not allow it.56
Otherwise the respondent has no records relevant to the applicant’s contentions
about security issues over the period relevant to issues raised by the applicant.
27. In response to the applicant’s contentions set out above (paragraph 18 above),
concerning electrical problems resulting in blackouts 3- 4 times/year between
2012 and 2016 and an alleged electrical shock in about December 2014, a
blackout that left the fridge not working in March 2016 for some days, the
respondent contended as follows. The applicant has a history of reporting power
outages at the premises, and the respondent’s records show that an electrician
attended on 27 occasions since 2010 in response to her concerns about
outages.57
The respondent contended that the recommendation by a tradesman
on 28 August 2012 to upgrade the switchboard was in response to what that
tradesman observed of the tenant’s behaviour: “…the tenant overloads the
circuit many times. Switchboard needs to be upgraded as the tenant is
experiencing nuisance tripping…”58
The respondent contended that the stove,
when in full use, did work, and was checked after a new circuit breaker was
52 Respondent’s response, dated 19 August 2016, annexure E, work order, dated 30 May 2013 53 Attachment A, History of works for the premises, Ms Jacqui Daniel’s witness statement, dated
19 August 2016 54 Respondent’s response, dated 19 August 2016, paragraph 7.1 55 Respondent’s response, dated 19 August 2016, annexure F, work order, dated 15 December
2014 56 Respondent’s response, dated 19 August 2016, annexure G, docket history, dated 31 December
2014 57 Respondent’s response, dated 19 August 2016, paragraph 9.2 58 Contractor’s estimate 5771480, dated 28 August 2012, Exhibit A3
13
installed on 9 April 2013.59
Also the applicant’s ADACAS support worker,
Ms Peluzzi, confirmed in her oral evidence that the stove has required some
minor repairs for example replacing the oven light but it does work, despite the
applicant saying the stove doesn’t work.60
28. The records show that the applicant reported an outage and sparking on
22 December 2014, that she was advised by the operator to turn the “main
power switch” off and on, and that when this failed to fix the problem an
electrician attended at 1pm that same day.61
The electrician, an ACTEWAGL
inspector and a Bepcon representative, conducted electrical assessments and
tests, and the electrician fixed the problem.62
The electrician confirmed that the
applicant had lost power to half of the premises. He noted that “a powerboard
was covered in liquid” at the premises, that the powerboard was “faulty”63
, that
the tenant “refused” to discard it, and that the applicant “claimed to be shocked”
to which he responded by advising her to “seek medical advice.”64
The
ACTEWAGL audit noted that the applicant claimed she received a shock when
“accessing the RCD unit to turn power back on”’, and that the audit indicated
the “premise [is] in sound electrical condition. Faulty power board unit inside
premise [is found] to be cause of issue. Bepcom advised customer to replace
faulty power board.”65
29. The respondent contended that they had also responded promptly to other
reports of electrical problems, including on 22 March 2016. When the
electrician attended urgently, they fixed a faulty light switch but found that the
power supply was uninterrupted, with the freezer showing no signs of being
59 Work order 6340908, dated 9 April 2013, Exhibit 3 60 Oral evidence Ms Peluzzi, 21 September 2016 61 Respondent’s response, dated 19 August 2016, annexure H, electrical report, dated
22 December 2014 62 Respondent’s response, dated 19 August 2016, annexures H and J, both dated 22 December
2014 63 Respondent’s response, dated 19 August 2016, annexure I, work order, dated 22 December
2014 64 Respondent’s response, dated 19 August 2016, annexure H, electrical report, dated
22 December 2014 65 Respondent’s response, dated 19 August 2016, annexure J, ACTEWAGL audit, dated
22 December 2014
14
without power for days as the applicant claimed.66
A further attendance on
1 June 2016 after the applicant reported that the switchboard “is hot to touch”
found the switchboard to be operating and that a faulty heater and overloading
caused the problem.67
30. The respondent contended that the numerous records for the premises
demonstrate that at all times the switchboard was certified to the relevant
standard. In any case an upgrade to the switchboard was undertaken when the
new air conditioner was installed.68
A more comprehensive upgrade would have
only been possible under the relevant Rule if approved by the respondent and
paid for by the tenant.69
31. In response to the applicant’s contentions set out in paragraph 17 above,
concerning an alleged fire on the cooktop of her stove at approximately 9pm,
19 November 2015, the respondent contended as follows. The respondent has
no records of the applicant reporting a fire to the cooktop or any fault to the
cooktop about this time. The respondent’s records show that the applicant
reported a problem with the smoke detector on 20 November 2015, which
would have been the day after the alleged fire in the kitchen, and the smoke
detector was replaced and a photo of the kitchen area taken which does show a
plastic tray partly melted but no fire damage.70
Since the alleged fire, the
respondent’s records show that electricians have attended the premises to assess
the power on at least three occasions.71
An inspection on the 1 March 2016 of
the premises showed no evidence of a fire or smoke damage on the cooktop or
the surrounding area.72
32. In response to the applicant’s contentions set out in paragraph 18 above,
concerning alleged smoke and flames coming from the television or the power
66 Witness statement Ms Jacqui Daniels, dated 19 August 2016, referencing attachment S, work
order dated 22 March 2016 67 Work order 10345351, dated 1 June 2016, Exhibit A3 68 Affinity Electrical service report 81542, undated, Exhibit A4 69 Business rule, tenant modification, Exhibit T5 70 Respondent’s response, dated 19 August 2016, annexure K, Spotless work order 9534233
dated 20 November 2015 71 Respondent’s response, dated 19 August 2016, paragraph 10.6 72 Respondent’s outline of submissions of the respondent, dated 7 October 2016, annexure M,
photos of premises, 1 March 2016
15
board while watching her television on 20 or 21 February 2016, the respondent
contended as follows. The respondent has no records of the applicant reporting
this to them. Their records show that the applicant raised a concern about the
smoke alarm on 24 February 2016, which was rectified on the same day.73
At an
inspection of the premises on 1 March 2016 no fire or smoke damage in the
lounge room was identified.74
Issue (b): What if any remedies including compensation are appropriate for the
respondents?
33. In summary, the respondent denied there was any basis for a rent reduction due
to electrical failures, unsecure premises and unsafe premises (as set out in the
applicant’s submissions, see paragraph 22 above) as follows:
a significant number of issues in the property have been caused by the
Applicant’s own negligence or wilful acts, such as overloading power
broads and losing keys, the Respondent has continued to respond to all
reported issues in the property, despite the fact that it may not have
always had an obligation to do so, and there is doubt as to whether the
Applicant ever reported certain alleged issues to the Respondent,
particularly as there is a tailored system in place for the Applicant to
report issues and the respondent has no record of receiving these
complaints in line with that arrangement.75
34. The respondent referred to photos of the applicant’s premises taken on 1 March
2016 which showed no fire damage, multiple electrical goods connected to
powerboards and significant material stacked around and on top of appliances.76
They contended that the respondent is not liable for any damage to her property
due to power surges and power outages caused by her own appliances and her
treatment of these appliances.
35. The respondent denied that they were liable for loss of the applicant’s stolen
property as follows: “the Respondent …cannot be held liable for the theft of the
Applicant’s goods in circumstances where the property was reasonably secure at
the commencement of the tenancy, and where the Respondent has responded to
73 Respondent’s outline of submissions of the respondent, dated 7 October 2016, annexure L,
work order dated 24 February 2016 74 Respondent’s outline of submissions of the respondent, dated 7 October 2016, annexure M,
photos of premises, 1 March 2016 75 Respondent’s outline of submissions of the respondent, dated 7 October 2016, paragraph 22 76 Respondent’s outline of submissions of the respondent, dated 7 October 2016, annexure M,
photos of premises, 1 March 2016
16
all reports of security issues in accordance with the requirements of the tenancy
agreement.”77
36. The respondent further contended that the applicant had not provided “any
evidence to causally connect the alleged poor condition of the property…to the
alleged personal injuries suffered by the Applicant.”78
37. The respondent contended that the Tribunal should not make any order for
specific performance by the respondent since the respondent is not in breach of
the agreement: “all maintenance work has been completed as reported by the
Applicant.”79
38. In relation to the applicant’s claims for compensation and specific performance,
the respondent referred to the fact that the respondent is a public authority, and
therefore the respondent’s “ability to undertake tasks beyond its standard
obligations as a landlord is limited by the resources available to it.”80
Findings
39. The applicant bears the onus of proof. In this case the Tribunal sought
corroboration from other evidence for any of the applicant’s contentions due to
the medical and other evidence about the applicant’s capacity to misconstrue the
facts. The Tribunal accepts the contentions from the respondent set out in
paragraphs 21 to 22 above that little weight can be given to applicant’s
recollection of events and incidents, where uncorroborated, given medical
evidence from the applicant’s health professionals. The evidence of the
applicant’s two ADACAS support workers also confirmed that at times the
applicant has a limited perspective about reality. For example Ms Peruzzi said
in her oral evidence that she attended the applicant’s premises because the
applicant was complaining that the stove didn’t work, however Ms Peruzzi said
that it did work.81
Similarly Ms Gonzalez said that the applicant “doesn’t lie”,
but she gave the example that the applicant would tell her that she has no food
77 Respondent’s outline of submissions of the respondent, dated 7 October 2016, paragraph 26 78 Respondent’s outline of submissions of the respondent, dated 7 October 2016, paragraph 25 79 Respondent’s outline of submissions of the respondent, dated 7 October 2016, paragraph 29 80 Section 110, Civil Law (Wrongs) Act 2002, cited in respondent’s outline of submissions of the
respondent, dated 7 October 2016, paragraphs 30 - 31 81 Oral evidence Ms Peruzzi, 21 September 2016
17
when there were tins of food and the underlying issue the applicant was
concerned about was that her bag was stolen.82
40. The Tribunal’s findings on the two contested issues listed in paragraph 8 above
are set out below.
Issue (a) Did the respondent breach the agreement, and if so, in what way?
41. In response to the applicant’s contentions set out above (paragraphs 12 to 15),
concerning an air-conditioner, the Tribunal finds that there is no breach of the
terms of the agreement. The Tribunal finds that the time to replace the air-
conditioner was reasonable given the complexity of the works required, and that
the applicant contributed to the delay due to her non-availability at times and
not having the correct key access to the common areas when required. The
evidence is clear that the applicant was provided with a heater at an early stage
when the air-conditioner became problematic, so she could heat herself over the
cooler months until it was fixed. There is no corroboration of the applicant’s
claim that the air-conditioner was permanently on the cooling cycle – the
evidence provided by the respondent is accepted by the Tribunal, that since
there was no mention of it being permanently on the cooling cycle by the
various tradespersons attending, then this is evidence that it was not the case.
Given these findings, the authority cited by the applicant (Best v Hardie [2010]
NSWCTTT 91) can be distinguished.
42. The Tribunal finds that the evidence is not sufficient to prove the applicant’s
contention that the gas leak caused her voice condition. Dr Sean Flanagan in his
written evidence advised that the applicant’s condition is a “multifactorial
problem”, and a gas leak and air-conditioner failure “contributed to her voice
problems”, and “at the very least …are exacerbating factors.”83
However in his
oral evidence he stated that the applicant could suffer from her condition
“without environmental triggers”, and that over the time he had been seeing her,
her condition stayed “approximately the same”84
, when the gas leak was only
temporary. Dr Flanagan agreed with a statement he made in a letter dated
82 Oral evidence Ms Gonzalez, 21 September 2016 83 Report by Dr Sean Flanagan, dated 25 May 2016, attachment 20, applicant’s witness
statement dated 23 June 2016 84 Oral evidence, Dr Sean Flanagan, 21 September 2016
18
21 December 2015 to another medical practitioner concerning the applicant that
the applicant is “borderline in her ability to manage herself.”85
The Tribunal
also finds there is insufficient evidence to prove her contention that the gas leak
caused problems for breathing of her pet bird – indeed the medical notes she
provided for her bird were dated in late 2015 and early 2016 and did not refer to
any link with the gas leak, but refer to reported causes of the bird’s medical
issues as “house was fumigated” and bird was “trodden” on.86
43. In response to the applicant’s contentions set out above (paragraphs 14 to 15),
concerning incidents of assault, robbery and burglary in 2013 and 2014, the
Tribunal finds that there is no breach of the terms of the agreement by the
respondent. The Tribunal accepts the well corroborated evidence of the
respondent and finds that the premises were reasonably secure. Most of the
authorities referred to by the applicant concerned lockable windows and so can
be distinguished here; the most relevant case, Aye v ACT Housing [2001] ACT
RTT 13, concerned a lock that was known by the landlord to be broken and not
fixed until after a burglary over two weeks later, and can be distinguished from
this case. In this case the records of the respondent show that where an incident
was reported to the respondent then the respondent responded promptly. The
evidence does not support the applicant’s contention that all the alleged
incidents were reported to the respondent for example the alleged assault and
robbery in July 2013. The Tribunal finds that the applicant’s behaviours and
medical conditions contributed to her perceptions about her premises being
unsafe. For example, the evidence shows that she frequently has difficulty
accessing her property with keys87
, and that the amount of her personal property
positioned at doorways has prevented some improvements to doors being
undertaken by the respondent.88
85 Oral evidence Dr Sean Flanagan, 21 September 2016, referring to letter from Dr Flanagan to
Dr Lijie Han dated 21 December 2015, attachment 15, applicant’s witness statement dated 23 June 2016
86 Exhibit A5, Canberra Vet Hospital, patient history dated 22 February 2016; Exhibit A7, RSPCA (ACT) Veterinary Clinic, medical note 7 December 2015
87 Attachment A, History of works for the premises, Ms Jacqui Daniel’s witness statement, dated 19 August 2016
88 Exhibit A6, ADACAS case notes, case note by Ms Peruzzi, dated 7 June 2016
19
44. In response to the applicant’s contentions set out in paragraph 16, concerning
electrical problems resulting in blackouts 3- 4 times/year between 2012 and
2016, the Tribunal finds that there was no breach of terms of the agreement by
the respondent. The Tribunal finds that electrical problems raised with them by
the applicant were promptly and appropriately dealt with, and the switchboard
has been checked and certified to be safe on many occasions and has been safe
throughout the period relevant to this matter. The Tribunal finds that the
evidence shows that the applicant’s behaviour, namely continual overloading of
the circuits through over-usage of powerboards and electrical goods, is a
significant contributor to the recurring electrical problems she complains of, and
that this has been communicated to her many times. For example, the ADACAS
case notes on 28 September 2012 refer to situations when the applicant
“overloads the circuits” and that “she has been shown how to turn [the main
switch] back on and how to make sure that she doesn’t overload the system – no
more than 2 heat producing appliances in each zone of the house…”89
The
evidence is that despite the applicant being shown the latter, she does not follow
this advice. The Tribunal accepts that the current switchboard is adequate for
the premises and it is not necessary as a term of the agreement for it to be
upgraded. While there is a process for the applicant to seek an upgraded
switchboard, which involves her paying for the upgrade, this has not occurred
because the applicant has not requested it.
45. In response to the applicant’s contentions concerning fires on the cooktop and in
the lounge room (refer to paragraphs 17 to 19) , the Tribunal finds no breach of
the terms of the agreement by the respondent. The Tribunal accepts that the
applicant believes the fires occurred, and certainly she has reported the fires to
some people including her medical practitioners. There is no corroboration of
the fires having occurred, as the respondent’s evidence emphasises. Indeed,
Ms Peruzzi was the applicant’s ADACAS support worker when the two alleged
fires, in the kitchen in November 2015 and the loungeroom in February 2016,
occurred. In the case of both fires, Ms Peluzzi attended shortly after the alleged
fires and said in her oral evidence that she saw no evidence of fire or smoke
89 Exhibit A6, ADACAS case notes, case note by Fiona May dated 28 September 2012; Spotless
Work Order 10359142, dated 7 June 2016 has a note “Impossible to do anything to the sliding door there is no way to work too much stuff around…”
20
damage.90
The ADACAS case notes also confirm that when Ms Peruzzi
attended the applicant’s premises on 1 March 2016, she and her co-worker
could see no evidence of fire damage.91
The applicant’s claim that she reported
the fires to the respondent at the time they occurred is not corroborated by the
respondent’s records. Indeed in her report to ADACAS the applicant advised
them that there was a fire (in the kitchen) and that the “ceiling has collapsed”,
but the ADACAS case notes confirm that upon contacting the respondent the
ADACAS worker realised that the respondent had not been advised of a fire by
the applicant but rather she had just advised them that the smoke alarm needed
fixing, which they promptly did.92
The work order, to fix the smoke alarm on 20
November 2015, a day after the alleged fire in the kitchen, has a photo of the
cooktop area attached – it shows no fire damage but does show a partially
melted plastic tray.93
The cases cited by the applicant in regard to the fires are
distinguished – unlike those authorities, in this case the Tribunal finds that the
fires did not occur, the cooktop has been working and the switchboard is not
defective.
Issue (b): What if any remedies including compensation are appropriate for the
respondents?
46. Given the findings by the Tribunal that there are no breaches of the terms by the
respondent, the issue of what remedies are appropriate has no relevance.
Orders
47. The Tribunal orders that:
1. The application is dismissed.
2. A person must not publish any information about this matter or any
evidence provided during the proceedings that will identify the name of
the applicant.
………………………………..
President G Neate
Delivered for and on behalf of the Tribunal
90 Oral evidence Ms Peruzzi, 21 September 2016 91 Exhibit A6, ADACAS case notes, case note by Michelle Peruzzi dated 1 March 2016 92 Exhibit A6, ADACAS case notes, case note by Ms Peruzzi, dated 20 November 2015 93 Respondent’s response, dated 19 August 2016, annexure K, Spotless work order 9534233
dated 20 November 2015
21
HEARING DETAILS
FILE NUMBER: RT 3/2016
PARTIES, APPLICANT: CM
PARTIES, RESPONDENT: Commissioner for Social Housing
COUNSEL APPEARING, APPLICANT N/A
COUNSEL APPEARING, RESPONDENT N/A
SOLICITORS FOR APPLICANT Lexicon Legal
SOLICITORS FOR RESPONDENT ACT Government Solicitor
TRIBUNAL MEMBERS: Senior Member L Beacroft
DATES OF HEARING: 2 & 21 September 2016
