Re Newell [2003] ACTSC 31 (7 May 2003)

Last Updated: 13 May 2003

CHRISTOPHER NEWELL and MARILYN NEWELL

[2003] ACTSC 31 (7 May 2003)

LEASES AND TENANCIES - Residential tenancies - Residential Tenancies Tribunal - where dwelling approved by all relevant authorities - where internal staircase too narrow to get furniture into bedroom upstairs - whether staircase had a "serious fault" - whether staircase in breach of clause 60(o) of the Prescribed Terms - where clause part of a residential tenancy agreement under the Residential Tenancies Act 1997.

LEASES AND TENANCIES - Residential tenancies - Residential Tenancies Tribunal - Jurisdiction of Residential Tenancies Tribunal - whether Tribunal able to make orders in respect of future agreements - whether Tribunal able to make orders for appellant to reveal "deficiency" with stairway to all prospective tenants by including a clause and acknowledgement in all future residential tenancy agreements - Tribunal not able to make orders going beyond the resolution of an actual dispute between lessor and tenant.

Residential Tenancies Act 1997, ss 43, 59, 60(o), 104

Ex parte Foote [1933] SASR 142

Lazar v Williamson (1886) 7 LR (NSW) 98

ON APPEAL FROM THE RESIDENTIAL TENANCIES TRIBUNAL OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 31 of 2001

Judge: Higgins CJ

Supreme Court of the ACT

Date: 7 May 2003

IN THE SUPREME COURT OF THE )

) No. SCA 31 of 2001

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE RESIDENTIAL TENANCIES TRIBUNAL OF THE AUSTRALIAN CAPITAL TERRITORY

CHRISTOPHER NEWELL

and MARILYN NEWELL

Appellants

ORDER

Judge: Higgins CJ

Date: 7 May 2003

Place: Canberra

THE COURT ORDERS THAT:

1. The appeal be upheld.

2. The order made by the Residential Tenancies Tribunal on 29 January 2001 is set aside.

3. The findings of the Residential Tenancies Tribunal upon which the order of that Tribunal referred to above were purportedly made are set aside.

1. This is an appeal from a decision of Ms J Lennard, constituting the Residential Tenancies Tribunal of the Australian Capital Territory (the "Tribunal"). The reason for a decision made on 8 December 2000, was expressed in terms declaring that:

"... the deficiency in the staircase was a breach of Clause 60(o) of the Prescribed Terms."

2. There is also a further decision of 29 January 2001 by which it was purportedly ordered:

"That the [Appellants] and/or their agent shall reveal the problem with the stairway to all prospective tenants by including a clause and acknowledgment in all future residential tenancy agreement (sic)".

3. This latter decision is the subject of the present appeal, albeit that the basis for the earlier decision is a relevant consideration for the correctness or otherwise of the decision in question.

4. The dispute between the parties relates to premises at 25/92 Casey Crescent Calwell in the Australian Capital Territory. That was a townhouse owned by the respondents (the appellants in this matter). The dwelling was newly constructed. It had been constructed, it was common ground, according to approved plans and specifications to the satisfaction of both the owners and the relevant authorities.

5. The applicants before the Tribunal, Stewart Cameron and Elizabeth Cameron, moved into the townhouse pursuant to a residential tenancy agreement with the appellants. They then discovered that the internal staircase of the dwelling was too narrow for the purposes of getting their furniture into the upstairs bedrooms. They complained immediately to the managing agent. That complaint was followed by a letter, dated 18 October 2000, in the following terms:

"My husband, Stewart, spoke to you on Saturday 14 October, regarding the problem of the complete inability to get certain furniture up the internal stairs of our rented property. This furniture consists of a double and a queen size bed base.

We have tried numerous ways to get the furniture upstairs, to no avail.

We would appreciate your attention on (sic) this matter to rectify this problem. Please contact Stewart on the mobile number above."

6. That drew a response from the managing agent dated the same date, stating:

"I am sorry that you are having problems with locating your furniture upstairs. We have not had any complaints regarding this matter from our other tenants.

I have spoken with the builder and he cannot offer me any solution either. I can only suggest purchasing smaller furniture."

7. There was some further correspondence between the parties but the impasse remained. Then followed an application to the Tribunal by Stewart Cameron and Elizabeth Cameron claiming:

"That the managing agent/and or landlord pay for alterations/modifications to the internal staircase/staircase ceiling to allow (bedroom) furniture to be placed in the bedrooms upstairs."

8. The matter was heard by the Tribunal on 8 December 2000 and, on 11 December 2000, "orders" were purportedly made in the following terms:

"1. That the Residential Tenancies Tribunal finds there is a need for repair under section 60(o) of the Prescribed Terms.

2. That this matter has been adjourned until Friday the 12^th day of January, 2001.

3. That costs of renovation are to be supplied to the Residential Tenancies Tribunal before date of Hearing.

9. The matter was further adjourned to 12 January 2001. Orders were then made which were not the subject of an appeal in these proceedings. Further orders were purportedly made on 29 January 2001, as recorded on 31 January 2001:

"1. That the Respondent pay a rental rebate of $100.00 per week for the entire period of occupancy within four days of the date of this Order.

2. That the Respondent pay an amount of $300.00 towards the relocation costs of the Applicants. Such amount is to be paid within 7 days of the date of vacation of the premises.

3. In making these orders the Residential Tenancy Tribunal takes the following matters into account:

(a) that the tenants have never been able to use the 2 bedrooms properly because they have had to use mattresses (meant to be supported by a base) on the floor;

(b) that this has resulted in lack of comfort and undue inconvenience to the Applicants;

(c) that the Applicants have had to store bed bases in the garage and therefore have not been able to use one of the two car spaces;

(d) that the Respondent has made little effort to negotiate or settle the matter;

(e) that the Applicants have had to move house twice in less than 6 months.

3.(sic) That the Respondent and/or their agent shall reveal the problem with the stairway to all prospective tenants by including a clause and acknowledgment in all future residential tenancy agreement (sic)."

10. The "Reasons for Decision" accompanying those purported orders acknowledged that the dwelling had been approved by all relevant authorities and complied (presumably) with all relevant standards. There was no suggestion of any misrepresentation by or on behalf of the appellants. Nor is it suggested that the tenants had been deprived of any opportunity to inspect the subject premises prior to their acceptance of the tenancy.

11. The Tribunal noted that the appellants (the respondent before the Tribunal) had been unwilling to negotiate a solution:

"...such as Respondent purchasing suitable beds or an agreement to reduce the rent for the period during which the Applicants were not fully able to use the bedrooms."

12. The "Reasons" continued:

"9. On 12^th January 2001 the Applicants indicated that they would prefer to end the tenancy. This was partly due to the lack of willingness to negotiate or compromise on the part of the Respondent.

10. The Respondents' agent indicated to the Residential Tenancy Tribunal that they had sought legal advice and disagreed with the finding of Residential Tenancy Tribunal on the 8^th day of December 2000. However, no legal argument was ever made.

11. The Residential Tenancy Tribunal on the 12^th day of January 2001 ordered that the tenancy shall terminate on February 1, 2001.

12. The matter was further adjourned to 29^th day of January 2001. Each party was directed to file and serve written submissions by close of business 24^th January. The Applicants have done so, the Respondents through their agents have filed a note wherein the landlord agrees to release the tenants from the lease - a matter which is superfluous in the face of orders 1 and 2 of the 12^th day of January. There is no submission as required in relation to the relocation costs or rental rebate."

13. The very proposition that, absent any defect in the premises or misrepresentation concerning them, let alone a condition of the premises that was blindingly obvious, a tenant has any complaint about disappointment in the deployment of furniture would usually be met by derisive laughter. As appears above, the Tribunal considered the complaint seriously and even upheld it. It is necessary to consider whether that apparently absurd result is capable of justification.

14. The Residential Tenancies Act 1997 (the "Residential Tenancies Act") does prescribe terms for a residential tenancy "agreement". If terms are prescribed, the description of the result as an "agreement", is somewhat anomalous. The more so when any inconsistent term may only be included if endorsed by the Tribunal. There is no dispute in the present case, however, about the applicability of the "prescribed terms".

15. Those terms are set out in the Schedule to the Residential Tenancies Act. Clauses 59 and 60 refer to "urgent repairs". They include the following terms:

"60. The following are urgent repairs in respect of the premises, or services or fixtures supplied by the lessor:

...

(o) a serious fault in any door, staircase, lift or other common area which inhibits or unduly inconveniences the tenant in gaining access to and use of the premises."

16. The term "fault" in conjunction with the word "repairs" all too self-evidently refers to a defect in the relevant means of access. That a tenant is unable to pass their pet elephant or camel through a standard sized doorway may be greatly distressing to the tenant but it does not bespeak a fault in the door. Nor is it a fault in a lift that it will not accept 50 or so persons at once, so that a partying tenant is obliged to admit guests in smaller groups rather than en masse. Nor that such a lift, designed, for example, to accept four persons, will not readily accept more.

17. The ordinary meaning of the term "repairs" is that of restoration of the relevant thing "to good condition by renewal or replacement of decayed or damaged parts, or by refixing what has given way; to mend" (Shorter Oxford Dictionary). It will come as no surprise that such is the meaning courts have afforded the term when considering an obligation to repair premises. Thus, in Ex parte Foote [1933] SASR 142, repairs were held to include replacement of broken or worn-out parts where necessary.

18. Conversely, making good structural deficiencies for the purpose of facilitating use by a tenant, not being other than a design shortcoming, is not within the meaning of the term "repairs" - see Lazar v Williamson (1886) 7 LR (NSW) 98.

19. It is regrettable that so fundamental a usage of language eluded the Tribunal. No doubt the Tribunal sympathised with the plight of the tenants, but, in doing so, fell into legal error.

20. There was no breach of 60(o) or any other term of the agreement. No order at all adverse to the lessors should have been made.

21. Worse was the making of a direction concerning agreements yet to be made. Even if there had been a dispute able to be resolved in the tenants' favour, there was no dispute concerning any future agreement, nor could there be until such an agreement was made. A tenant may apply under s 43 of the Residential Tenancies Act to terminate a tenancy agreement for breach. Additionally, the Tribunal might make orders under s 104. None of its powers are exercisable absent a dispute, nor is the Tribunal empowered to go beyond the resolution of some actual dispute between a lessor and a tenant.

22. The appeal is upheld. The order made by the Tribunal on 29 January 2001 is set aside, as is the finding upon which it was purportedly based.

23. I will hear the parties as to costs.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Associate:

Date: 7 May 2003

Counsel for the Appellants: Mr C Whitelaw

Solicitor for the Appellants: Mr R Vandenberg

Date of Hearing: 29 May 2002

Date of Judgment: 7 May 2003